In the middle of the night on Thursday, the Supreme Court formally refused to block Texas’s near-total abortion ban in an 5-4 decision, green lighting—at least for now—the implementation of what dissenting justices called a blatant assault on women’s constitutional right to terminate a pregnancy. The conservative majority acknowledged as much in an unsigned opinion that cited “complex” and “novel” procedural obstacles as a reason to uphold the law.
All three of the court’s liberal justices, as well as Chief Justice John Roberts, wrote dissenting opinions—an unusual barrage that seemed designed to emphasize their outrage. Roberts pointed out that Texas’s law was expressly constructed to evade legal challenges. By outlawing abortion as early as six weeks’ gestation—before many people even know they’re pregnant—and empowering private citizens, rather than state officials, to enforce the law, “the desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime,” Roberts wrote in his dissent. “The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf,” Justice Elena Kagan wrote.
Justice Sonia Sotomayor’s dissent was perhaps the most emphatic. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand,” she wrote—a “stunning” order in which they “silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.”
The Supreme Court’s refusal to block the restrictive law may set a precedent in its own right. “The Texas law is a kind of gruesome blueprint for what other states can do,” former acting Solicitor General Neal Katyal told me Thursday. “Now that the Supreme Court has let Texas get away with it, the Court will be hard pressed to stop other states when they enact similar laws.” On Twitter, Katyal called for Democrats, who are in charge of both houses of Congress, to codify Roe in legislation. If Republicans try to filibuster the bill, he wrote, “great argument to get rid of it.”
Law professor Steve Vladeck added that the SCOTUS majority hanging its hat on procedural complexities “with full knowledge that the law created those technicalities for exactly this reason” is “indefensible” and “encourages [Texas] and other red states to be equally cynical going forward.” Other states such as Iowa and South Carolina are reportedly anticipating copycat laws.