Texas Now Has “Bounty Hunters” For Abortion: Learn Sonia Sotomayor’s Scathing Authorized Disagreement | Sonia Sotomayor

TThe arrangement of the court is breathtaking. The majority of the judges have chosen to bury their heads in the sand.

Last night, the court quietly approved a state bill that disregarded nearly 50 years of federal precedent. Today the court belatedly declares that it refused to grant appeals because of the procedural complexity of its own invention. Since the court’s inaction rewards tactics aimed at avoiding judicial review and does significant harm to applicants and women seeking abortions in Texas, I disagree.

In May 2021, Texas legislature enacted SB8 (the Act). The law, which went into effect nationwide on September 1 at midnight, bans doctors from performing abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity. This corresponds to a near-categorical ban on abortion, beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability. According to the applicants, who are abortion providers and advocates in Texas, the law will immediately prohibit caring for at least 85% of Texas abortion patients and will force many abortion clinics to close.

The law is clearly unconstitutional under the existing precedents. See e.g. B. June Medical Servs LLC v Russo, 591 US ___, ___ (2020) (ROBERTS, CJ, Consistent Judgment) (Slip op, p. 5) (declares that “the state of women does not have an inappropriate ability to obtain an abortion “Of a” non-viable fetus “(with reference to Roe v Wade, 410 US 113 (1973) and Planned Parenthood of Southeastern Pa v Casey, 505 US 833 (1992); internal quotation marks omitted)). Respondents don’t even try to argue otherwise. They couldn’t either: no federal appeals court has upheld such a comprehensive ban on abortion before viability under current law.

The Texan legislature was well aware of this binding precedent. To get around this, the legislature took the extraordinary step of obliging private individuals to do what the state could not. The law empowers any private individual to bring a lawsuit against anyone who violates the law, “favors or supports” such an abortion (including paying for it), regardless of whether or not they know the abortion is carried out under the law Is prohibited by law, or even intends to participate in such behavior. Courts must prohibit the defendant from engaging in any of these acts in the future and award the private prosecutor at least $ 10,000 in “legal damages” for each prohibited abortion the defendant performs or assists. In fact, the Texan legislature has named the citizens of the state bounty hunters and offered them cash prizes for civilly prosecuting their neighbors’ medical practices.

Legislature designed this scheme because federal constitutional challenges against state law are usually directed against state officials responsible for enforcing it. By banning state officials from directly enforcing the law and instead relying on citizens’ bounty hunters, lawmakers sought to make it more difficult for federal courts to enact the law on a statewide basis.

Taken together, the act is a breathtaking act of defiance – the Constitution, the precedents of this court, and the rights of women seeking abortions across Texas. But more than six weeks after complainants filed a lawsuit to prevent the law from coming into force, a fifth higher court abruptly suspended all proceedings before the regional court and overturned an injunction that was due to begin Monday. The applicants requested emergency aid from this court, but the court did not answer. The law went into effect at midnight last night.

• From the dissent of Justice Sotomayor in Whole Woman’s Health et al. v Austin Reeve Jackson, Judge et al., on the request for an injunction. She was accompanied by Judges Breyer and Kagan. This text has been slightly edited to remove some legal notices