Law & the Courts

Supreme Court Declines to Block Texas Heartbeat Law

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

Just before midnight on Wednesday evening, the Supreme Court rejected a challenge to a Texas law that prohibits the abortion of an unborn baby once a heartbeat can be detected.

The 5-4 decision, reached less than 24 hours after the law took effect, came down along ideological lines, with Chief Justice John Roberts and the Court’s three liberal justices dissenting.

The majority didn’t touch on the substance of the law but opted against preemptively blocking it, finding that the abortion providers who brought the challenge had not adequately addressed the novel procedural questions associated with a law that empowers private individuals, rather than state officials, to enforce an abortion ban.

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit,” the opinion reads. “In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

An appointee of former President George Bush, Roberts split with his conservative colleagues in favor of blocking the ban but acknowledged that many questions regarding the technicalities of the law still remain.

“The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden,” the per curium, the unsigned court opinion from the majority, read.

The novelty the majority refers to lies in the fact that the state government does not have the authority to enforce the ban directly or indirectly. Rather, the measure empowers private citizens to sue medical practitioners or others who perform or help a woman undergo an abortion after six weeks.

The opinion added that this provision leaves ambiguous whether the High Court will need to engage with the case again if litigation results from the law’s implementation. “It is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention,” it noted.

Taking issue with the Texas law, Associate Justice Sonia Sotomayor said she would be willing to grant the plaintiffs injunction so that lower courts can review the “propriety of judicial action and preliminary relief” before the law takes effect in the state.

“The court’s order is stunning,” Sotomayor wrote in a dissent alongside Associate Justices Stephen Breyer and Elena Kagan. “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.”

The ruling is sure to fuel speculation that the Court will strike down the landmark 1973 Roe v. Wade decision when the upcoming term begins in October.

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