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Monday, September 27, 2021

Explained: Reading US Supreme Court’s refusal to block Texas anti-abortion law

The Texas law is being interpreted as one of the strictest anti-abortion laws in the US since the landmark judgment delivered under Roe versus Wade on January 22, 1973.

Written by Apurva Vishwanath | New Delhi |
Updated: September 3, 2021 7:40:59 am
Rachel Hernandez chants with abortion rights supporters as they protest SB 8 in front of Edinburg City Hall on Wednesday, Sept 1, 2021, in Edinburg, Texas. (AP)

The US Supreme Court on Wednesday refused to block a Texas anti-abortion law that bans termination of pregnancy after six weeks. The 5-4 majority decision of the Supreme Court has raised questions on the right to abortion and the conservative approach of the court.

What is the law that was challenged?

In May 2021, the Texas legislature enacted S. B. 8 (the Act). The Act, which took effect at midnight on September 1, makes it unlawful for physicians to perform abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity, even though this could be months before a viable foetus develops. Legal experts have noted that the wording is designed to make it very difficult to challenge the law in courts.

Laws that outlaw an activity are enforced by the state. However, according to The New York Times, the Texas law gives rights to private citizens to “sue anyone who performs an abortion or ‘aids and abets’ a procedure. Plaintiffs who have no connection to the patient or the clinic may sue and recover legal fees, as well as $10,000 if they win”. So the question before the Supreme Court was whether the Texas law can be challenged in courts with the state of Texas as a defendant.

On both moral and religious grounds, a strong anti-abortion movement is in place in the US. In India, the Medical Termination of Pregnancy Act allows abortion up to 24 weeks of pregnancy.

What has the court ruled?

In a 5-4 majority opinion, it has refused to block or grant a preliminary injunction against the law despite a constitutional right to abortion that the US Supreme Court had recognised in the 1973 verdict Roe v Wade.

Chief Justice John G Roberts, Jr, and associate justices Stephen G Breyer, Sonia Sotomayor and Elena Kagan dissented.

“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. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. 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,” Associate Justice Sonia Sotomayor said in her dissent.

What does a refusal to block mean?

The emergency ruling refusing to block is akin to a refusal to grant an interim stay of legislation by Indian courts. While Wednesday’s ruling does not stop the Texas legislation from facing legal challenges, it also ensures that for the first time since Roe v Wade, such a stringent anti-abortion law is enforced.

Other Republican states, too, have introduced similar laws but these have not yet been implemented as they are challenged in courts. According to The NYT, these include Georgia, Mississippi, Kentucky and Ohio.

An abortion rights advocate holds a sign at the Capitol in Jackson, Miss. (AP Photo/Rogelio V. Solis, File)

How has the US Supreme Court ruled earlier on abortion?

In its 1973 verdict in Roe v Wade, the Supreme Court had ruled with a 7-2 majority that undue regulation on abortion violated the 14th Amendment to the Constitution which guarantees due process in laws. Despite several attempts to overturn the ruling, Roe v Wade stayed as the precedent that protected women’s rights to bodily autonomy.

Also, the 1992 verdict Planned Parenthood v Casey recognised that laws outlawing abortion are unconstitutional if they place an “undue burden” on a woman seeking an abortion before the foetus is viable.

What questions does the latest ruling raise?

The obvious fallout is the enforcement of a regressive anti-abortion regime that would violate the rights of women.

“Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf,” Justice Elana Kagan noted in her dissenting opinion.

Another question raised is about the US Supreme Court’s practice of handing out preliminary or summary rulings that could vastly affect civil liberties — a practice that is referred to as “shadow docketing.”

What is shadow docketing?

Unlike the Indian Supreme Court, the US Supreme Court hears only about 60-70 cases in a year which it carefully chooses. The cases chosen are put in the “merit docket”. For cases that do not make it to the docket, the court does not cite reasons or issue a signed reasoning. This practice is referred to as “shadow docketing”, which legal experts have noted is on the rise in recent years, with the justices handing down one- or two-sentence summary decisions late at night in controversial cases.

In February this year, the House Judiciary Committee held a hearing on the shadow docket, inviting legal experts to explain the history of the practice, and looked into whether the Congress should be concerned about the practice.

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