In a 5-4 decision in Whole Woman’s Health v. Jackson the Supreme Court allowed Texas’s abortion law to remain in effect while it is further litigated in the lower courts. The law prohibits abortions after approximately six weeks and allows private citizens to enforce it. Whole Woman’s Health states that the law disallows abortions for at least 85% of Texas abortion patients and will force many abortion clinics to close.

The majority opinion is unsigned and one paragraph long. It concludes Whole Woman’s Health failed to meet its burden to obtain an injunction prohibiting the law from going into effect because its request “presents complex and novel antecedent procedural questions.” For example, “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” None of the Texas government officials sued “possess the authority to enforce the Texas law either directly or indirectly.”

The majority also noted that “we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.”

Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan all wrote separate dissents.

Chief Justice Roberts, joined by Justices Breyer and Kagan, described Texas’s law as “not only unusual, but unprecedented.” He noted the “desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.” He would have prevented the law from going in place “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”

Justice Breyer would have prevented Texas’s law from going into effect as well opining he didn’t think it made a “critical legal difference” that Texas delegates it’s power to prevent abortions to “any person.” “That delegation still threatens to invade a constitutional right, and . . . still threatens imminent harm. Normally, where a legal right is ‘invaded,’ the law provides ‘a legal remedy by suit or action at law.’” Justices Sotomayor and Kagan joined this opinion.

Justice Sotomayor, joined by Justices Breyer and Kagan, characterized the Court’s order as “stunning.” She noted that the Texas legislature knows it can’t prevent abortions at six weeks so it “took the extraordinary step of enlisting private citizens to do what the State could not.” “By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.” “Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked.” “[T]he Court has rewarded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation.”

Justice Kagan, joined by Justices Breyer and Sotomayor, also would have prevented Texas’s law from going in place. She noted that the Court’s decision in this case was made on its “shadow-docket.” The Court acted in less than 72-hours, didn’t receive full briefing, conduct oral argument, or have a district or appellate court decision to review. According to Justice Kagan, “the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more un-reasoned, inconsistent, and impossible to defend.”

Litigation in this case will now return to the lower courts. The Supreme Court has agreed to hear a challenge to a Mississippi law preventing abortion after 15 weeks. Mississippi has asked the Court to overturn Roe v. Wade (1973), which prohibits states from adopting laws the pose an “undue burden” on obtaining an abortion before viability.

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