WASHINGTON: President Joe Biden on Thursday lambasted the Supreme Court’s decision not to block a new Texas law banning most abortions in the state and directed federal agencies to do what they can to insulate women and providers from the impact.
Hours earlier, in the middle of the night, a deeply divided high court allowed the law to remain in force in the nation’s biggest abortion curb since the court legalized the operation nationwide a half-century ago.
The court voted 5-4 to deny an emergency appeal from abortion providers and others but also suggested that their order likely wasn’t the last word and other challenges can be brought.
Biden said his administration will launch a whole-of-government effort to respond to this decision and look at what steps the federal government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe.
He said women should be protected from “the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.”
Biden, who has come under pressure from Democrats to expand the size of the Supreme Court, has ordered a review of the court that is due next month.
The Texas law, signed by Republican Governor Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before many women know they’re pregnant.
It is the strictest law against abortion rights in the United States since the high court’s landmark Roe v. Wade decision in 1973 and part of a broader push by Republicans nationwide to impose new restrictions on abortion.
At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.
The high court’s order declining to halt the Texas law came just before midnight Wednesday.
The majority said those bringing the case had not met the high burden required for a stay of the law.
“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. 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 unsigned order said.
Chief Justice John Roberts dissented along with the court’s three liberal justices.
Each of the four dissenting justices wrote separate statements expressing their disagreement with the majority.
Roberts noted that while the majority denied the request for emergency relief the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.
The vote in the case underscores the impact of the death of the liberal Justice Ruth Bader Ginsburg last year and then-president Donald Trump’s replacement of her with conservative Justice Amy Coney Barrett.
Had Ginsburg remained on the court there would have been five votes to halt the Texas law.
Justice Sonia Sotomayor called her conservative colleagues’ decision stunning.
“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,” she wrote.
Texas lawmakers wrote the law to evade federal court review by allowing private citizens to bring lawsuits in state court against anyone involved in an abortion, other than the patient.
Other abortion laws are enforced by state and local officials, with criminal sanctions possible.
In contrast, Texas’ law allows private citizens to sue abortion providers and anyone involved in facilitating abortions.
Among other situations, that would include anyone who drives a woman to a clinic to get an abortion.
Under the law, anyone who successfully sues another person would be entitled to at least $10,000.
In her dissent, Justice Elena Kagan called the law patently unconstitutional, saying it allows “private parties to carry out unconstitutional restrictions on the State’s behalf.”
Justice Stephen Breyer said a woman has a federal constitutional right to obtain an abortion during the first stage of pregnancy.