The U.S. Supreme Court has once again let the lower courts delay in addressing a Texas law that for four months has, for all practical purposes, made abortion in the state illegal after six weeks of pregnancy, when many women do not yet know they are pregnant.
This is the third time the court has ducked dealing with the law, known as SB 8, which is aimed at skirting enforcement of the right to abortion. Last month, the high court, in a fractured ruling, sent the case back to the Fifth Circuit Court of Appeals, with a single tenuous route to challenging the law. The Fifth Circuit, however, sent the case to the state supreme court, in an apparent attempt to delay further while the U.S. Supreme Court determines whether to reverse its 50-year-old abortion precedent, Roe v. Wade.
Indeed, at oral argument, Appeals Court Judge Edith Jones openly opined that perhaps the appeals court should "just sit on this until the end of June" when the Supreme Court will have rendered its decision in a case from Mississippi challenging Roe.
That prompted abortion rights groups to file an emergency request with the U.S. Supreme Court, asking the court to command action by the Fifth Circuit, and to send the case back to the original federal judge who blocked the Texas law from going into effect.
But the court's six conservatives — split just four months ago on what to do — rejected the appeal, prompting two angry dissents from the court's three liberals.
When the justices dispensed with this case in December, wrote Justice Stephen Breyer, "I had thought the Court of Appeals would quickly remand the case to the District Court so that it could [decide the case] consistent with our ruling."
"Instead," said Breyer, "the Court of Appeals ignored our judgment," sending the case to the Texas Supreme Court.
Justice Sonia Sotomayor, also writing for the court's three liberals, called the case "a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies."
"I will not stand by silently as a state continues to nullify this constitutional guarantee," she concluded.
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