The Supreme Court just announced that it will take up the Texas law that requires abortion centers to meet the standards of an ambulatory surgical center, which entails costly and time-consuming renovations. This law is the latest effort by the state to restrict access to abortions and has been met with nationwide resistance. Organizations, including key pro-choice groups, have filed suit to block the law.
So, after all the tears and prayers, the Supremes have now issued their ruling in the Texas abortion case. This ruling puts abortion rights in Texas in serious jeopardy, and it’s now up to the lower courts to decide if the state’s requirements for clinics to meet the standards of ambulatory surgical centers will stand up to legal scrutiny. The Supreme Court’s decision leaves room for the lower courts to overturn the 2011 decision that said that Texas’ rules will stay in place unless the state’s health department can prove they are absolutely necessary. But, since Texas cannot prove they are, the Supremes have now handed the state the opportunity to meet the legal requirements to prevent the clinics from closing.
Just when you thought things couldn’t get worse for abortion rights advocates, the Supreme Court ruled that women don’t have a Constitutional right to access abortion, even in the case of rape. This ruling is a clear sign that the court doesn’t trust the American people to make their own decisions about abortion legality, and that the court is more concerned with the state’s rights to manage a woman’s body than a woman’s right to make her own decisions.
Over the course of a page and a half, the majority opinion exposed Roe’s future vulnerability.
The decision, according to Nancy Northup, president of the Center for Reproductive Rights, would encourage other states and lower courts to “totally disregard” the 1973 opinion, which she characterized as a “dead letter” in Texas.
People “wondering what can I do and where can I go?” have already flooded clinics, according to Northup.
Justice Clarence Thomas, for example, has not been hesitant in the past in voicing his disapproval of the court’s abortion rulings. In 2019, Thomas, who has openly said that the Roe v. Wade decision was incorrect, claimed that abortion law had “spiraled out of control.” Last year, Justice Neil Gorsuch spoke bluntly about the court’s position on abortion: “We have lost our way.”
The court’s three liberals, Elena Kagan, Sonia Sotomayor, and Stephen Breyer, are left battling in dissent with the conservative majority prepared to curtail abortion rights — with Chief Justice John Roberts sometimes straddling the issue.
They were dazzling last night.
Sotomayor described the legislation as “flagrantly illegal,” claiming that it violates “almost 50 years of federal precedents.”
“The Act is a stunning act of defiance,” Sotomayor said, “of the Constitution, of this Court’s decisions, and of the rights of women seeking abortions throughout Texas.”
Why is Texas important for Roe?
To be fair, the court didn’t decide on the merits of the Texas legislation, and they didn’t explicitly overturn Roe by permitting it. According to the majority, the ruling is not based on “any judgment regarding the legality of the legislation.”
Instead, they were focusing on a single case with a labyrinth of procedural problems around whether or not a certain group of defendants could be sued. There were shortened papers and no chance for oral arguments or a reasoned conclusion since it was an emergency application.
The court’s “shadow docket,” as legal experts call it, is where the court may take major measures without explanation via its actions (or inactions).
The court’s decision does not rule on whether the six-week restriction is constitutional, even if it would have a substantive impact, and it does not prevent future legal challenges to the state legislation.
“These kind of emergency challenges aren’t definitive resolutions of a case’s merits,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
The shadow docket, however, may have “substantive consequences even when they come down on procedural grounds,” according to Vladeck.
“It is appalling that the court did not step in to prohibit this obviously unlawful limitation,” said Elizabeth Wydra, president of the leftist Constitutional Accountability Center.
“We will press the court to hear the issue on its merits and inform people throughout the nation whether Roe will remain the law of the land or not,” she said.
Nonetheless, proponents of abortion rights recognize that, although the court did not decide on the merits, it gave a strong signal as to where it is headed.
That’s because the justices examine a variety of criteria while deciding how to decide in the case. One of them is whether the clinics would prevail on their own merits in the end.
Supporters of abortion rights are fully aware that the court currently includes three former President Donald Trump nominees who promised to select “pro-life” justices. In the Texas order, those candidates were in the majority.
This term, Mississippi will be tested.
Until this week, the focus on the Supreme Court and abortion has been on a challenge to Mississippi’s 15-week ban, which is a direct challenge to Roe v. Wade. It will be determined, most likely by next summer, following a complete round of briefing, a flurry of friend of the court papers, and oral arguments.
And the Texas case may have an effect on that decision. This is why.
The Texas case differed from others in that anti-abortion activists in red states were inventive in their decades-long effort to reverse Supreme Court decision. They designed the Texas legislation in such a manner that it would be almost difficult to contest it before it took effect, which was a new legal approach. That’s because, in most cases, advocates of abortion rights may file a lawsuit against a state official, such as a prosecutor or a health department employee, when an abortion legislation is challenged.
However, this legislation prohibits government employees from implementing the prohibition directly. Critics claim that this was done on purpose to keep the case out of federal court.
Instead, the legislation enables private people to file civil lawsuits against anybody who helps a pregnant woman seeking an abortion in contravention of the prohibition, regardless of where they live in the nation. Someone who transports a patient to a clinic falls under this category. Or someone who consented to pay for the abortion of another individual.
Roberts expressed worry that the legislation “appears to shield the State from responsibility for implementing and enforcing the regulatory system” while voting with the liberals on Thursday. He believes it should be stopped in order to “maintain the status quo” and “let the courts to examine whether a state may escape accountability for its laws in this way.”
In her dissent, Kagan was less circumspect.
“Without full briefing or arguments, and after less than 72 hours of consideration, this Court affirms Texas’ plainly unconstitutional statute prohibiting most abortions,” she said. “By deputizing private parties to carry out unlawful limitations on the State’s behalf, the Court supports Texas’ strategy to shield its statute from judicial scrutiny.”
It was a resounding win for proponents of the Texas ban when the judges permitted it to take effect, citing the fact that clinics in the state indicated they would not violate the law, thus stopping most abortions in the Lone Star State.
If the ban stays in place, other states hostile to abortion will attempt to enact similar legislation to expand the law’s reach.
As a result, by the time the Supreme Court decides in the Mississippi case, the landscape may have changed, with abortion essentially prohibited in certain states. A conservative judge wary of overturning precedent may not have to go to such lengths to overturn Roe.
With the new law, the states will have effectively done so.
The court’s ruling on the Texas legislation, as well as other information, have been added to this article.
The Supreme Court said today it will consider Texas’ sweeping restrictions on abortion. The rules, which take effect in September, require doctors who perform the procedure to have admitting privileges at nearby hospitals and require abortion clinics to meet the same standards as surgical centers. The restrictions, which have been opposed by abortion rights advocates, have been in effect in less than a dozen states in the U.S.. Read more about roe v wade wiki and let us know what you think.
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