WASHINGTON, Sept 2 — A Texas abortion ban that is the strictest in the United States in almost half a century will remain in place for the foreseeable future after a US Supreme Court decision that raised questions about how it will rule on another upcoming case on women’s rights.
The court’s move late yesterday to leave in place a ban on abortion after the sixth week of pregnancy could foreshadow what is to come as the 6-3 conservative majority court decides in the coming months whether to curb abortion rights nationwide, as some conservative activists have sought to do for decades.
By a 5-4 vote, the justices denied an emergency request by abortion and women’s health providers for an injunction on enforcement of the ban, which took effect early yesterday and prohibits abortion at a point when many women do not realise they are pregnant, while litigation continues. The law could still be blocked at some other stage.
The law would amount to a near-total ban on the procedures in Texas — the second-most-populous US state — as 85 per cent to 90 per cent of abortions are obtained after six weeks of pregnancy, and would probably force many clinics to close, abortion rights groups said.
One of the court’s six conservatives, Chief Justice John Roberts, joined its three liberals in dissent.
“The court’s order is stunning,” liberal Justice Sonia Sotomayor wrote in a dissenting opinion.
“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.”
In an unsigned explanation, the court’s majority said the decision was “not based on any conclusion about the constitutionality of Texas’s law” and allowed legal challenges to proceed.
A majority of Americans believe abortion should be legal in the United States, according to Reuters/Ipsos polling. Some 52 per cent said it should be legal in most or all cases, with just 36 per cent saying it should be illegal in most or all cases.
But it remains a deeply polarising issue, with a majority of Democrats supporting abortion rights and a majority of Republicans opposing them. The number of abortions reported to the US Centres for Disease Control and Prevention has dropped in recent decades, to roughly 620,000 in 2018, the most recent figures, down from 790,000 in 2009.
Prominent Democrats including President Joe Biden and House of Representatives Speaker Nancy Pelosi both voiced strong objections to the Texas law. Congress has the power to legalise abortion nationwide, but with razor-thin majorities, Democrats would face enormous challenges in doing so.
That led some liberals to again call for abolishing the Senate’s filibuster rule, which requires 60 of that chamber’s 100 members to agree on most legislation.
“Republicans promised to overturn Roe v. Wade, and they have,” Democratic US Representative Alexandria Ocasio-Cortez of New York wrote on Twitter. “Democrats can either abolish the filibuster and expand the court, or do nothing as millions of peoples’ bodies, rights, and lives are sacrificed for far-right minority rule.”
With the Senate evenly divided 50-50 between Democrats and Republicans, it is unclear whether Democrats would have the necessary votes to expand abortion rights even if the filibuster was abolished.
The court decision illustrates the impact of former Republican President Donald Trump’s three conservative appointees to the nation’s highest court, who have tilted it further to the right. All were in the majority.
A ban like Texas’ has never been permitted in any state since the Supreme Court decided Roe v. Wade, the landmark ruling that legalised abortion nationwide, in 1973.
Texas is among a dozen mostly Republican-led states to ban the procedure once a fetal heartbeat can be detected, often at six weeks.
Courts had previously blocked such bans, citing Roe v. Wade.
The Supreme Court is set to hear oral arguments in the coming months in a case centering on Mississippi’s 15-week abortion ban, in which the state has asked the justices to overturn Roe v. Wade. A ruling is due by the end of June 2022.
The Texas ban, signed into law on May 19, is unusual in that it prevents government officials from enforcing it, instead giving private citizens that power by enabling them to sue anyone who provides or “aids or abets” an abortion after six weeks. Citizens who win such lawsuits would be entitled to at least US$10,000.
That structure has alarmed both abortion providers, who said they feel like they now have prices on their heads, and legal experts who said citizen enforcement could have broad repercussions if it was used across the United States to address other contentious social issues.
Republican state Senator Bryan Hughes, who was the lead author of the legislation, is also a key supporter of a contentious new bill restricting voter access, which Texas Governor Greg Abbott, a Republican, is set to sign into law.
A law allowing people to carry legally owned firearms in public without a permit also went into effect this week in the state. — Reuters