What John Roberts’ role in Texas abortion case might signal for Roe’s future
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“The clear purpose and real effect of SB 8,” wrote Roberts, referring to the Texas ban on abortions after about six weeks of pregnancy, “has been to overturn the rulings of this Court.”
The whole abortion debate in the U.S. high court in recent months has revealed a shift in majority opinion on reproductive rights and a loosening of Roberts’ hold on the bench.
Friday’s dispute revolved around a process under Texas law that delegates enforcement of the ban to individuals and attempts to isolate all state officials from prosecution.
“Texas has used a series of ploys designed to protect its unconstitutional law from judicial review,” observed Roberts, noting clinics have been deterred from performing abortions because they have so far not been able to obtain a prior review of the application of the ban which flouted. a historic decision almost half a century old.
In 1973, Roe v. Wade said women have a constitutional right, rooted in the 14th Amendment privacy protection, to terminate a pregnancy before a fetus is viable, which is now estimated to be around 23 weeks.
The new ruling – controlled by the five Tories to Roberts’ right, including the three Trump appointees – gives abortion providers limited ability to seek redress in federal court. Clinics said Friday’s mixed judgment will likely prevent them from resuming regular operations in the near future.
The majority of the court, in an opinion from Judge Neil Gorsuch, said that while most state officials remain immune from prosecution, some license officials could face prosecution because they are said to be specifically responsible for the measures to be taken. execution against those who violate SB 8.
Roberts, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, countered in dissent that many other state officials could be held accountable, from state court clerks to the Texas attorney general himself.
The Chief Justice has disagreed with the majority from the start. He urged his colleagues to suspend the law while a dispute on the merits unfolded. Appointed in 2005 by President George W. Bush, Roberts has in the past voted for more regulation of abortion. But it is also an institutionalist who tried to slow the momentum of the right on the bench.
Citing a judicial precedent from 1809, Roberts wrote: “Indeed, while the legislatures of several states may at will set aside the judgments of the courts of the United States and destroy the rights vested under those judgments, the constitution itself- even becomes a solemn mockery. ‘”
Roberts added: “The nature of the federal law violated does not matter; it is the role of the Supreme Court in our constitutional system that is at stake. ”
In a separate dissent, Sotomayor acutely wrote about the consequences for women in the state, as she has done at every stage of this litigation.
Since the ban came into effect, she wrote, “the law has threatened abortion care providers with the prospect of essentially unlimited damages lawsuits, brought anywhere in Texas by private bounty hunters, for taking steps to help women exercise their constitutional right to choose. . The paralyzing effect was almost total …. The court should have ended this madness months ago, before SB 8 first came into effect. “She was only joined in her dissent by Breyer and Kagan.
When the court heard oral arguments in the case, it appeared that Barrett and Judge Brett Kavanaugh were more suspicious of Texas law specifically designed to shield state officials from liability for unconstitutional measures. .
But both signed the court opinion drafted by Gorsuch, holding only a limited group of officials accountable, and they did not write any separate statements explaining their views. (Justices Samuel Alito and Clarence Thomas were also in the majority; Thomas, however, reportedly prohibited abortion providers from suing all state officials in their efforts to block SB 8.)
It is unclear whether the Chief Justice made any progress with Kavanaugh and Barrett as the Texas case was negotiated privately.
In separate Dec. 1 arguments in the Mississippi abortion case, Roberts signaled that he was trying to persuade at least one judge from that right-wing bloc to join him in a decision that would at least preserve a small part of Roe v. Wade.
Roberts appeared poised to uphold Mississippi’s ban on abortion after 15 weeks of pregnancy, which would violate Roe’s threshold of fetal viability, while preserving some constitutional right to abortion in the first few weeks.
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