Today, in fact, is Justice Sotomayor’s birthday-and I can’t help but think about an image I saw a few weeks ago when visiting the National Portrait Gallery’s exhibition “ Eye Pop: The Celebrity Gaze.” The exhibition includes portraits of six Latinos, including Sotomayor and actress and Latino Victory Project co-founder Eva Longoria. Her selection was historic in many ways-she was the third woman and the first Hispanic to sit on the bench. Next month will mark six years since Sonia Sotomayor was appointed as an associate justice to the United States Supreme Court. She was joined by Justices Breyer and Kagan.Sonia Maria Sotomayor / Timothy Greenfield-Sanders / Inkjet print on paper, 2010 / National Portrait Gallery, Smithsonian Institution The act took effect at midnight last night.įrom Justice Sotomayor’s dissent in Whole Woman’s Health et al v Austin Reeve Jackson, Judge, et al, on application for injunctive relief. The applicants requested emergency relief from this court, but the court said nothing. But over six weeks after the applicants filed suit to prevent the act from taking effect, a fifth circuit panel abruptly stayed all proceedings before the district court and vacated a preliminary injunction hearing that was scheduled to begin on Monday. Taken together, the act is a breathtaking act of defiance – of the constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas. 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. The legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing. In effect, the Texas legislature has deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures. Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. The act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the act, or even intends to engage in such conduct. To circumvent it, the legislature took the extraordinary step of enlisting private citizens to do what the state could not. The Texas legislature was well aware of this binding precedent. Nor could they: no federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law. The respondents do not even try to argue otherwise. The act is clearly unconstitutional under existing precedents. According to the applicants, who are abortion providers and advocates in Texas, the act immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close. This equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.
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The act, which took effect statewide at midnight on 1 September, makes it unlawful for physicians to perform abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity. In May 2021, the Texas legislature enacted SB8 (the act).
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Because the court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. Today, the court belatedly explains that it declined to grant relief because of procedural complexities of the state’s own invention. Last night, the court silently acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents. 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.