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Abortion rights advocates demonstrate in front of the Supreme Court of the United States Supreme Court of the United States in Washington, DC, United States on December 01, 2021. The justices weigh whether to uphold a Mississippi law that bans abortion after 15 weeks and overrule the 1973 Roe v. Wade decision. (Photo: Yasin Ozturk/Anadolu Agency via Getty Images)

The Supreme Court Deals Another Body Blow to Women in Texas

"This case is a disaster for the rule of law and a grave disservice to women in Texas."

Aron Solomon

For those who closely follow the Supreme Court, Thursday was a particularly somber day in its history. Advocates for women's rights argue that, given the opportunity to protect the rights and lives of women, this Court once again chose to take the wrong fork in the road.

Thursday's decision does not bode well for proponents of retaining the principles of Roe and Casey as the law of the land in the United States. 

Only a month ago, the Supreme Court refused to block Texas SB8, which became law on September 1st. The Court instead opted, in an 8-1 decision, to send the case back to the Fifth Circuit Court of Appeals. The Fifth Circuit then allowed Texas to further delay by sending it to the Texas Supreme Court. Following this move, abortion rights groups filed an emergency request with the Supreme Court to have the case sent back to the same federal judge who, back in October, had orginally blocked Texas SB8 from going into effect.

In their 6-3 decision on Thursday, the Supreme Court essentially said that they are fine with what the Fifth Circuit did, so Texas SB8 - a deeply flawed piece of legislation that leverages the prospect of private lawsuits to essentially enforce a ban on abortions after six weeks of pregnancy - remains in effect today. 

To truly understand that scope of what the Supreme Court did, one needs to read the entire substance of Justice Breyer's very short dissent, joined by Justices Kagan and Sotomayor:

In Whole Woman's Health v. Jackson, 595 U. S. ___ (2021), this Court was clear. We said: "[E]ight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young," the state licensing-official defendants. Id., at ___ (slip op., at 17). When the mandate issued, I had thought that the Court of Appeals would quickly remand the case to the District Court so that it could reach the merits and enter relief consistent with our ruling. After all, "[w]hatever was before the Court, and is disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it upon any matter decided on appeal for error apparent; or intermeddle with it, further than to settle so much as has been remanded." Sibbald v. United States, 12 Pet. 488, 492 (1838).

Instead, the Court of Appeals ignored our judgment. It kept the case and certified questions about the licensing official defendants to the Texas Supreme Court.

I have written that this Texas case, while extremely important in practice, was only a lead-in for the main course of Dobbs v. Jackson Women's Health Organization, the Mississippi case that could reverse Roe v. Wade and Planned Parenthood v. Casey. That oral argument was on December 1st, with a decision not expected until mid-year at the earliest. As NPR reported on Thursday, during oral argument, Judge Edith Jones, of the Fifth Circuit Court of Appeals, actually said that perhaps the appeals court should "just sit on this until the end of June," when the Supreme Court will have made their decision in Dobbs.

In this truly head-shaking context, Adriana González, a South Florida lawyer, encapsulates the outrage of people who look at Texas SB8 though a legal lens:

"By not only allowing but actively encouraging ongoing delay tactics by Texas, on Thursday, the Supreme Court failed in their responsibility to do not only the humane thing with Texas SB8 but also the legally correct one."

Justice Sotomayor who has been working remotely, as she is immunocompromised and not every Justice has agreed to wear a mask on the bench, wrote her own truly scathing seven-page dissent, which was joined by Justices Breyer and Kagan:

"This case is a disaster for the rule of law and a grave disservice to women in Texas."

Sotomayor's dissent, lengthier than that of Justice Breyer, highlighted that this isn't the first but actually the FOURTH time the Supreme Court "declines to protect pregnant Texans from egregious violations of their constitutional rights,"

In failing to send the case back to federal District Court, Sotomayor asserted that:

"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," later adding that the federal district court "will remain powerless to address S.B. 8's unconstitutional chill on abortion care, likely for months to come."

Finally, Sotomayor makes an exceptionally powerful statement, even for such an impassioned dissent:

"I will not stand by silently as a State continues to nullify this constitutional guarantee,"

In Supreme Court-speak, those are fightin' words and the field of battle will be the Court's decision in Dobbs. While minimizing in any way what happened on Thursday would be disrespectful to all of the courts involved and especially to women in Texas and throughout the nation, Thursday was a bad loss in a regular season game and Dobbs is the Super Bowl. 

Yet one thing is as clear as the Texas early morning skies: Thursday's decision does not bode well for proponents of retaining the principles of Roe and Casey as the law of the land in the United States. 

Those who can see the core of the Court's new inaction on Texas SB8 see a Court simply unwilling to do even the absolute minimum when it comes to protecting women's health. In the context of Thursday's decision, it would be remarkably difficult to convince anyone that this dark look through the glass is anything but accurate.


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Aron Solomon

Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in CBS News, CNBC, USA Today, ESPNTechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.

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