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A pro-life activist attends a rally outside the Supreme Court.
An anti-abortion activist wears tape saying “life” on his mouth at a rally outside the Supreme Court, Nov. 1, 2021, as arguments begin about an abortion case, at the court on Capitol Hill in Washington.
Jacquelyn Martin, Associated Press

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How to read the Supreme Court’s pro-abortion head fake

To see which side benefits most from the decision, look at the reaction of Justice Sonia Sotomayor

The Supreme Court on Friday said abortion providers can proceed with their challenge to the Texas “heartbeat law” that prohibits termination of a pregnancy after six weeks, and a key challenger to the law tweeted, “We won, on very narrow grounds.”

But the ban stays in place for now, making today’s decision a win for abortion opponents, as made evident by Justice Sonia Sotomayor’s fiery dissent.

Sotomayor, whose remarks on the “religious” nature of anti-abortion arguments made headlines during last week’s oral arguments for another abortion case, said, “The court should have put an end to the madness months ago, before SB 8 first went into effect. It failed to do so then, and it fails again today.”

The “madness” to which Sotomayor refers is the nation’s most restrictive abortion law, which bans abortion after cardiac activity is detected in an embryo. The ban became effective Sept. 1, despite legal efforts to at least temporarily block it. It was challenged not only by abortion providers, but by the U.S. Department of Justice, which maintains that the law violates the U.S. Constitution and federal law.

While allowing the ban to stand, Chief Justice John Roberts appeared to rebuke state lawmakers who craft laws designed to subvert existing laws. “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery,” he wrote.

At issue was a provision in the Texas law that allows anyone, regardless of where they live, to sue an abortion provider or anyone else who helps someone obtain an abortion in Texas after six weeks. The Guttmacher Institute, a nonprofit that advocates for abortion rights, calls this a “cruel new twist” in abortion restrictions, and others have called it a “sue thy neighbor” law that enables vigilantism for financial gain.

The Texas law, along with the Mississippi case (Dobbs v. Jackson Women’s Health Organization) that the Supreme Court is considering, doesn’t mean that women can’t get abortions, only that they can’t get them in these states after six and 15 weeks’ gestation, respectively. In its indictment of the law, the Guttmacher Institute says this is a hardship for Texas women who would have to drive hundreds of miles to get an abortion in Kansas or New Mexico.

Despite the wailing and gnashing of teeth among abortion supporters on social media —one person tweeted, “They are telling you — they’re overturning Roe v. Wade” — today’s decisions shed no clear light on how the justices will rule in the Dobbs case, which abortion opponents see as the best hope for overturning Roe v. Wade. If anything, the language in the justices’ opinions suggest they’re just as divided as the rest of the country on the subject.

So, buckle up, America. The 49th anniversary of Roe v. Wade is Jan. 22, just six weeks away. Whether Roe will see 50 is anybody’s guess, but today, abortion opponents got a small victory.

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