Honestly, there’s not a whole lot to add here from yesterday. As of this writing, SCOTUS has still not acted on the emergency petition from Texas abortion providers over SB8. SCOTUS will issue a response to that request, but they can take their time about it if they want to. That right there tells you something.
Most of the stories out there that I’m seeing are further explainers of SB8 and how it works and what the current legal status is, some with a side helping of justified rage. They mention the state court injunction in passing, as it has a very limited effect. There are stories about the effect this law has already had on providers and patients, and stories about what SCOTUS has done by doing nothing and what we can do about it (nothing easy, unfortunately). There are reactions from politicians, with Democrats promising to fight, and calls to action from folks who understand that if you’re not ditching the filibuster, you really can’t fight effectively. And on and on.
And so we wait, and we try to figure out how to move forward, and we really better internalize the idea that 1) we need to win more elections, and 2) we need to effectively wield the power we have when we have it. This is what happens otherwise.
UPDATE: Welp.
A deeply divided Supreme Court is allowing a Texas law that bans most abortions to remain in force, for now stripping most women of the right to an abortion in the nation’s second-largest state.
The court voted 5-4 to deny an emergency appeal from abortion providers and others that sought to block enforcement of the law that went into effect Wednesday. But the justices also suggested that their order likely isn’t the last word on whether the law can stand because other challenges to it can still be brought.
The Texas law, signed by Republican Gov. 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.
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It’s not just that this ruling renders abortion a virtual dead-letter in the nation’s second-largest state; it’s that it overtly *rewards* the Texas legislature for its profound cynicism—and, in the process, encourages it and other red states to be equally cynical going forward.— Steve Vladeck (@steve_vladeck) 11:55 PM – 1 September 2021
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Put another way, this was all an obvious ploy to frustrate Roe without anyone having to actually vote to overrule it.The Justices in the majority *know that* this was such a ploy; they know that it is widely understood to be such a ploy, and they chose to reward it *anyway.*
— Steve Vladeck (@steve_vladeck) 12:08 AM – 2 September 2021
I’m just sick.