Supreme Court Upholds New Texas Abortion Law, For Now

Sep 2, 2021
Originally published on September 2, 2021 12:52 pm

Updated September 2, 2021 at 12:20 PM ET

The U.S. Supreme Court late Wednesday night refused to block a Texas law that amounts to a ban on abortions after six weeks of pregnancy. The vote was 5-4, with three Trump-appointed justices joining two other conservative justices. Dissenting were conservative Chief Justice John Roberts and the court's three liberal justices.

The decision left open the option for abortion providers to challenge the Texas law in other ways in the future, meaning the case possibly — or even likely — will return to the Supreme Court, though not for months or longer.

The opinion was unsigned. It said the abortion providers didn't properly address "complex and novel antecedent procedural questions" in their case.

"In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants' lawsuit," the decision said. "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."

The ban on abortions after cardiac activity can be detected — usually at six weeks of pregnancy and well before most people even know they are pregnant — is at odds with the Supreme Court's precedents, which prohibit states from banning abortions prior to fetal viability — usually between 22 and 24 weeks. The Texas bill, however, was structured to insulate the law from being tested quickly in court.

Because the established procedure for challenging a state law is to sue officials charged with enforcement, the Texas state legislature wrote the law instead to put citizens in charge of enforcement. Specifically, the law allows anyone, without establishing any vested personal interest, to sue clinics and individuals alike for "aiding and abetting" abortions performed after about six weeks.

That potentially puts in the crosshairs of liability not just clinics but also individuals who staff the clinics, who drive patients to clinics or who help finance abortions.

The court's action came just before midnight on Wednesday, nearly a day after the law went into effect. Abortion rights advocates late last week filed an emergency appeal with the court after a panel of the Fifth Circuit Court of Appeals canceled a hearing that had been scheduled by a federal trial judge on whether to block the law.

Chief Justice Roberts, in dissent, said he would have temporarily blocked the law from going into effect in order to give the lower courts adequate time to hear and decide "whether a state can avoid responsibility for its laws" by "essentially delegat[ing] enforcement to...the populace at large."

The case, he acknowledged, does present difficult and novel questions, but none of those questions had been thoroughly considered yet by the lower courts. Nor, Roberts said, had the cases been fully briefed or considered by lower court judges.

The president and Nancy Pelosi condemn the decision

President Biden on Thursday slammed the Supreme Court ruling, saying it "unleashes unconstitutional chaos."

In a statement, he said the White House would look for ways the federal government could ensure Texans have access to safe and legal abortions and to protect people from enforcement of the Texas law.

The Justice Department is "deeply concerned" about the law, according to Attorney General Merrick Garland, and is "evaluating all options to protect the constitutional rights of women, including access to an abortion."

House Speaker Nancy Pelosi vowed the lower chamber will take up legislation to codify access to abortion when lawmakers return later this month. But while the Women's Health Protection Act, which has been proposed during several legislative sessions, could have enough votes to win passage in the House, it faces a very uncertain future in the evenly divided Senate.

Still, Pelosi and others said the move was the next logical step.

"The Supreme Court's cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women's rights and health is staggering," Pelosi said.

Justice Sotomayor writes: 'The court's order is stunning.'

Joining Roberts' opinion were liberal Justices Stephen Breyer and Elena Kagan. Each also wrote separately, as did Justice Sonia Sotomayor.

Justice Breyer, citing the famous 1803 case of Marbury v. Madison, said that normally where a legal right is invaded, the law itself "provides a legal remedy by suit," and this law, he suggested, does the opposite.

Justice Kagan, in her written dissent, said "Texas's law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage," a right that the Supreme Court has endorsed repeatedly over nearly a half century.

Justice Sotomayor used bolder language than the three other dissenters did.

"The court's order is stunning," she wrote. "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. ... Because the court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent."

NPR congressional reporter Claudia Grisales contributed to this story.

Copyright 2021 NPR. To see more, visit


The Supreme Court says the state of Texas can move forward with its new law to ban abortions after a fetal heartbeat is detected. This happens usually after six weeks, which is often before women even know they're pregnant. This is the strictest anti-abortion law passed since the landmark Roe v. Wade decision in 1972 granted women the right to a legal abortion. This decision was released overnight. The court decided to deny an emergency appeal from abortion providers that sought to block the enforcement of the law that went into effect yesterday. Joining us now to talk about the effect of the decision, NPR's legal affairs correspondent Nina Totenberg. Nina, good morning.

NINA TOTENBERG, BYLINE: Good morning, Rachel.

MARTIN: The majority in the court stressed that it was not ruling on the constitutionality of the Texas law. What specifically did they take issue with?

TOTENBERG: Well, this law is different than any other restriction on abortion that's been enacted by states in the past and blocked by the lower courts and the Supreme Court consistently. This law delegates enforcement not to the state officials, but to any individual in the state who can sue the clinic, sue individuals, sue, potentially, staff members who man the front desk, sue, potentially, family members, people who drive abortion patients to the clinic. This law is very different. The majority acknowledged that the abortion providers had raised serious questions regarding the constitutionality of the Texas law. But, they said, because of the way the law operates, those constitutional questions were not enough to stop the law from going into effect. And this is dramatic evidence that the right to terminate a pregnancy is on very, very shaky grounds at the Supreme Court and has a very difficult future with three conservative justices who were nominated by President Trump now on the court. And the bottom line is the court now has a 6-3 conservative supermajority, with all six having taken positions hostile to abortion rights at one time or another. And in this case, the conservatives had room to lose a vote, which they did from the chief justice.

MARTIN: Right. So Justice - Chief Justice John Roberts joined with the liberal justices in dissenting. What did he say?

TOTENBERG: He called the Texas law unprecedented, said it insulated the states from responsibility. He said he would have temporarily blocked the law from going into effect in order to give the lower courts adequate time to hear and decide whether a state - and here, I'm quoting - "can avoid responsibility for its laws" by "essentially delegating enforcement to the populace at large."

MARTIN: The court previously hasn't allowed fetal heartbeat bills to stand. So explain how it is so that the court has decided to let this exist. And what does this portend for Roe v. Wade?

TOTENBERG: The legislature did a very specific, unusual and legally controversial thing here. Normal people who enforce the law won't be enforcing the law. Instead, individuals on the street, anybody without a vested interest even can sue anyone who aids and abets. They don't have to have, you know, a stake in the individual case at hand, which is the normal way to challenge the law. So this - you can't sue a state official for failing to - for the way it's enforcing this law or enforcing the law at all. Instead, you have to deal with, you know, one or 10 or hundreds or thousands or tens of thousands of individuals who may bring lawsuits for damages against individuals who aid and abet the performance of abortion.

MARTIN: But the court didn't - it sounds like they - they said that this was highly unusual. But the majority decided that that's OK to empower citizens in this way.

TOTENBERG: They didn't say that. They said that there wasn't enough, empowering citizens wasn't enough to get to this question right now. Wait, and maybe we'll take it up later. If you bring us an individual case where somebody has actually been sued.

MARTIN: And meanwhile, the law is allowed to take effect. I mean, what will this mean for abortion access across the country?

TOTENBERG: Well, it sends a signal as to what the court might do in Roe in the future. As I said, it's on very shaky grounds. And finally, Texas is being allowed to - this Texas law being allowed to stand has other implications. If this system of attacking state law by private citizens is OK for abortion, is it OK for New York to do the same thing for guns? Could it pass very strict gun rules and say individual citizens can enforce them? It's a very different way of approaching law enforcement in this country. And it has no precedent in how we've done this in the past.

MARTIN: NPR legal affairs correspondent Nina Totenberg. Thank you.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.