The Supreme Court is allowing the Texas abortion ban to say in place until at least November 1, when it has agreed to an expedited review of the law following the Biden administration’s challenge. That the court has consistently refused to put a halt to enforcement of the Texas law pending that argument takes a lot of the mystery away from what their final decision will be. As of November, it seems pretty certain abortion will be eliminated in Texas. After the court hears a broader challenge from Mississippi, that will be it for abortion in pretty much every Republican state.
The Supreme Court will hear both the Justice Department’s and Texas abortion providers’ challenges on November 1, it announced, with a stinging rebuke in dissent from Justice Sonia Sotomayor for its decision to leave the law in effect. “For the second time, the Court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas,” she wrote in dissent.
“For the second time, the Court declines to act immediately to protect these women from grave and irreparable harm. […] The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now,” she continued. “These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether.”
“There are women in Texas who became pregnant on or around the day that S. B. 8 took effect. As I write these words, some of those women do not know they are pregnant,” Sotomayor continued. “When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State.” Those who can afford to, she says, will go out of state. “Those without the ability to make this journey, whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or resort to dangerous methods of self-help.” Pregnant Texans are “entitled to relief from this Court now,” she wrote. “Because of the Court’s failure to act today, that relief, if it comes, will be too late for many.”
Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, one of the state’s largest provider networks, agreed in a statement: “Texans deserved better than this. The legal limbo is excruciating for both patients and our clinic staff,” she said. “Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come.” The clinic has “had to turn hundreds of patients away since this ban took effect, and this ruling means we’ll have to keep denying patients the abortion care that they need and deserve.”
Take Back the Court Action Fund Executive Director Sarah Lipton-Lubet notes that this decision “comes a day after Justice Clarence Thomas took an anti-abortion victory lap with Mitch McConnell and a room full of Republican donors.” That’s not an exaggeration. At all. McConnell called Thomas a “legal titan” who has proven that through his “jurisprudence on unborn life,” at a Heritage Foundation even Thursday night.
“Every time without fail, Justice Thomas writes a separate, concise opinion to cut through the 50-year tangle of made-up tests and shifting standards and calmly reminds everybody that the whole house of cards lacks a constitutional foundation,” McConnell said.
McConnell knows. The Heritage Foundation knows. The Trump-packed Supreme Court knows. The right to abortion—which the American people have steadfastly supported in large majorities for decades—is going to be taken away by this court. Because, McConnell says, “They’re not tasked with reasoning backward from abstract impressions about what outcome the nation supposedly needs or the court’s public standing supposedly requires,” McConnell said. “We need the rule of law, not the rule of polls.”
McConnell is gloating over his coup. While Republicans represent a minority of the population, they continue to rule. Because he broke the Senate and, for now at least, Democrats are unwilling to fix it. Because he and the Federalist Society have succeeded in packing the courts with extremist ideologues and President Joe Biden and the Senate seem unwilling to fix that, either. Let’s just hope that the awakening among elected Democrats, when it comes, isn’t too late.