Sotomayor excoriates majority for ‘egregious’ attack on Texas women

"This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies," said the justice. "I will not stand by silently as a state continues to nullify this constitutional guarantee."

U.S Supreme Court Justice Sonia Sotomayor issued an outraged dissent Thursday as the high court permitted a right-wing three-judge panel to delay proceedings regarding Texas’ extreme abortion ban—a tactic the conservative court has openly admitted may allow the law to stay in place indefinitely.

In a 6-3 ruling, the Supreme Court refused to grant Texas abortion providers’ request that their case against Senate Bill 8, which bans most abortions after six weeks of pregnancy, be sent to a district court which could potentially issue an injunction blocking the law.

Instead, the court’s right-wing majority allowed the case to remain with the Texas Supreme Court, which could take months to issue a ruling—barring abortion providers from caring for their patients and forcing Texans to travel out of state for abortions if they are able to or continue unwanted pregnancies. According to the Center for Reproductive Rights, which is representing the abortion providers, “the average one-way driving distance for Texans to reach an abortion clinic has increased from 17 miles to 247 miles” since S.B. 8 went into effect.

With its ruling, Sotomayor said in her dissent, “this court declines to protect pregnant Texans from egregious violations of their constitutional rights.”

“Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the court allows the state yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation,” she continued. “The court may look the other way, but I cannot.”

The latest ruling regarding S.B. 8 comes four months after the Supreme Court allowed the law to go into effect. In addition to banning abortion care after six weeks, the law imposes a bounty-hunting scheme in which any citizen can sue anyone who helps a person in Texas to obtain an abortion, entitling plaintiffs to $10,000 if they win their case. Republican legislatures in other states have shown interest in replicating the law.

In a ruling known as Whole Woman’s Health II in December, the Supreme Court allowed abortion providers to sue state licensing officials who enforce the law against clinics, giving pro-choice advocates some hope that S.B. 8 could be reversed or limited.

But instead of sending the case to the district court, the Supreme Court sent it to the right-wing Fifth Circuit Court of Appeals in New Orleans. Texas officials called on the appeals court to certify the case to the state Supreme Court to determine whether state authorities can be sued over enforcing the law, and a three-judge panel including appointees nominated by former Republican Presidents Ronald Reagan and Donald Trump “launched a series of delaying tactics,” as Slate reporter Mark Joseph Stern wrote Thursday.

Panel members scheduled utterly gratuitous oral arguments to run down the clock… then certified the case to Texas’ high court… At arguments, [Judge Edith] Jones suggested that her court should sit on the case until June—at which point, she explained, SCOTUS might overturn Roe v. Wade.

Thursday’s Supreme Court ruling, Sotomayor said, is evidence that “any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory.”

“Texas wagered that this court did not mean what little it said in Whole Woman’s Health II or, at least, that this court would not stand behind those words, meager as they were,” wrote Sotomayor. “That bet has paid off.”

Stern noted that parts of the justice’s dissent read “like a eulogy for Roe.” Reproductive rights advocates fear the ruling that affirmed Americans have the right to abortion care could be overturned this year as the court considers Mississippi’s 15-week ban.

“The district court will remain powerless to address S.B. 8′s unconstitutional chill on abortion care, likely for months to come,” wrote Sotomayor. “This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a state continues to nullify this constitutional guarantee.”

The justice’s “stunning” dissent, wrote Stern, suggests Sotomayor is “in burn-it-all-down mode, unleashing her opprobrium on the justices poised to extinguish a fundamental liberty, unencumbered by the fear of losing a vote that she could never win.”

“Sotomayor already knows whether the Supreme Court will overturn Roe in June,” he wrote. “Would she write with such ferocity if five justices had, against all odds, decided to save the constitutional right to abortion? It seems exceedingly unlikely. Much more probable is that Sotomayor knows the end of Roe is near and has given up trying to persuade or placate her anti-abortion colleagues.”

As pro-choice advocates marked the anniversary of the landmark ruling Friday, hundreds of organizations signed a letter urging the U.S. Senate to pass the Women’s Health Protection Act, which would ensure that Americans have the right to obtain abortion care and healthcare providers have the right to provide abortions. The House has already passed the legislation and President Joe Biden supports the proposal.

“Texans have been without abortion access for almost five months now, and there is no end in sight because the Supreme Court has done nothing to stop this unconstitutional ban,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “It’s time for the Senate to take action and pass the Women’s Health Protection Act.”

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Julia Conley is a Common Dreams staff writer.

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