Thursday, December 2

Texas Now Has Abortion ‘Bounty Hunter’: Read Sotomayor’s Scathing Legal Dissent | Sonia Sotomayor


TThe court order is amazing. Faced with a petition to ban a flagrantly unconstitutional law designed to prohibit women from exercising their constitutional rights and evade judicial scrutiny, most judges have chosen to bury their heads in the sand.

Last night, the court quietly accepted the enactment of a law by a state that violates nearly 50 years of federal precedent. Today, the court belatedly explains that it refused to grant reparation due to the procedural complexities of the state’s own invention. Because the court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on applicants and women seeking abortions in Texas, I disagree.

In May 2021, the Texas Legislature enacted SB8 (the law). The law, which took effect statewide at midnight on Sept. 1, makes it illegal for doctors to perform abortions if they detect heart activity in an embryo or fail to test for heart activity. This amounts to an almost outright ban on abortions that begins 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 immediately prohibits care for at least 85% of abortion patients in Texas and will force many abortion clinics to close.

The act is clearly unconstitutional according to existing precedents. See, for example, June Medical Servs LLC v Russo, 591 US ___, ___ (2020) (ROBERTS, CJ, concurring in judgment) (slip op, at 5) (explaining that “the state cannot impose an undue burden on the woman’s ability to obtain an abortion ”from a“ nonviable fetus ”(citing Roe v Wade, 410 US 113 (1973), and Planned Parenthood of Southeastern Pa v Casey, 505 US 833 (1992); inner quotation marks omitted)). Respondents don’t even try to argue otherwise. Neither could they: no federal appeals court has upheld such a comprehensive ban on abortion prior to feasibility under current law.

The Texas legislature was well aware of this binding precedent. To circumvent it, the legislature took the extraordinary step of recruiting private citizens to do what the state could not. The law authorizes any private citizen to file a lawsuit against anyone who performs an abortion in violation of the law, “aids or incites” such abortion (even paying for it) regardless of whether they know that abortion is prohibited by law. , or even intends to engage in such conduct. The courts are required to prohibit the defendant from participating in these actions in the future and award the private citizen plaintiff at least $ 10,000 in “legal damages” for each prohibited abortion performed or assisted by the defendant. In effect, the Texas legislature has designated citizens of the state as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.

The legislature designed this scheme because federal constitutional challenges to state laws are generally brought against state officials who are in charge of enforcement. By prohibiting state officials from directly enforcing the law and relying instead on citizen bounty hunters, the legislature sought to make it more difficult for federal courts to prohibit the law at the state level.

Altogether, the act is an impressive act of defiance of the constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas. But more than six weeks after the applicants filed a lawsuit to prevent the law from taking effect, a fifth circuit panel abruptly suspended all proceedings before the district court and overturned a preliminary injunction hearing that was scheduled to begin. on Monday. The plaintiffs requested emergency help from this court, but the court did not say anything. The act went into effect at midnight last night.

  • From the dissent of Judge Sotomayor in Whole Woman’s Health and others against Austin Reeve Jackson, judge and others, on the request for precautionary measures. She was joined by Justices Breyer and Kagan. This text has been slightly modified to remove some legal citations.


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