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Anti-abortion protesters gather outside the Supreme Court building in Washington, D.C.
In this June 29, 2020 file photo, anti-abortion protesters wait outside the Supreme Court for a decision in a case out of Louisiana, Russo v. June Medical Services LLC.
Patrick Semansky, Associated Press

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Supreme Court rules Texas abortion law can remain in effect

Justices were split 5-4 over whether to allow Texas’ ban on abortions after six weeks to stand

Texas’ controversial new abortion restrictions will remain in effect after the Supreme Court voted 5-4 to deny a request to put the policy on hold.

Justices in the majority said the abortion rights advocates who requested the court’s intervention had not met the legal burden required to prevail. However, it’s still possible for the law to be declared unconstitutional in the future, they wrote.

“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,” explained the unsigned opinion.

Chief Justice John Roberts was the only conservative justice who would have blocked the policy. He joined the court’s three liberals in criticizing the Texas government’s actions.

“The statutory scheme before the court is not only unusual, but unprecedented,” Roberts wrote in his dissenting opinion.

The policy at issue in the case, Texas SB8, authorizes individual citizens to “sue someone who provides an abortion after six weeks, helps someone obtain an abortion after six weeks or ‘intends’ to do these things,” The Washington Post reported in July, adding that the law does not permit lawsuits against abortion patients themselves.

In his dissent, Roberts points out that by empowering individuals to take action against abortion providers and others, officials seemed to be trying to shield the policy from legal interference.

“The state defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place,” he wrote.

The court’s liberal justices and others believe that, despite the law’s unusual set-up, the policy violates previous rulings on abortion, including Roe v. Wade. Legal precedent recognizes “a constitutional right to have an abortion before the point of fetal viability, generally understood to occur around 24 weeks of pregnancy,” SCOTUSblog reported earlier this week.

President Joe Biden highlighted the Texas law’s dismissal of Roe in a statement released Wednesday before the Supreme Court released its decision.

“My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right,” he said.

The justices’ decision to allow the Texas policy to remain in effect is especially controversial since it came in the form of a shadow docket ruling, meaning that justices intervened in a case that wasn’t fully briefed or argued before the Supreme Court.

In shadow docket situations, the justices do not have to go into detail about how they came to their conclusion. The rulings often lead to confusion, since legal experts can struggle to determine how to apply the guidance to other, related cases.

The shadow docket loomed large in the religious freedom landscape over the past year as the Supreme Court repeatedly intervened in clashes involving faith-related COVID-19 restrictions. In one such case, Tandon v. Newsom, the justices spent only a few paragraphs outlining a new approach to the First Amendment’s free exercise clause and did not acknowledge the significance of the adjustment.

This week’s decision, like Tandon, raises more questions than it has answers for. However, the court will have an opportunity to provide clarity in the near future in a case about a Mississippi policy that bans nearly all abortions after 15 weeks. The justices will likely hear oral arguments later this year, and a decision is expected by the end of June 2022.

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