The US Supreme Court handed a major victory to abortion opponents late Wednesday, denying an emergency request to block a new law effectively banning most abortions in the southern state of Texas.
The court, which had received the emergency request from abortion rights advocates on Monday, did not rule on the constitutionality of the law, which went into effect 24 hours earlier but cited “complex and novel antecedent procedural questions” for leaving it in place while the court battle continues.
The decision was reached with a narrow majority of five justices in favour, three of whom were appointed by former President Donald Trump, who cemented a conservative-leaning 6-3 majority on the nine-member panel during his time in office.
Chief Justice John Roberts, a moderate conservative, like the three liberal justices, indicated that he would have blocked the “unprecedented” law, pending a substantive review.
More bluntly, liberal Justice Sonia Sotomayor called the court’s order “stunning,” saying her colleagues had “opted to bury their head in the sand” over a “flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights.”
Senate Bill 8, or SB8, signed in May by Texas Governor Greg Abbott, a Republican, bans abortion once a fetal heartbeat can be detected, which is usually in the sixth week of pregnancy — before many women even know they are pregnant — and makes no exceptions for rape or incest.
The only exemption is if there is a danger to the woman’s health.
While similar laws have passed in a dozen Republican-led conservative states, all had been stymied in the courts.
The Supreme Court declined to rule on the request from rights groups and abortion providers to block the law by midnight September 1.
The other states that have sought to enact restrictions on abortion in the early stages of pregnancy have been barred from doing so by rulings that cited protections granted in Roe v. Wade, the landmark 1973 Supreme Court case that legally enshrined a woman’s right to an abortion.
That decision guaranteed the right to an abortion in the US so long as the fetus is not viable outside the womb, which is usually the case until the 22nd to 24th week of pregnancy.
But Texas’ law is different from those of other states because it allows the public — rather than state officials such as prosecutors or health departments — to bring private civil suits to enforce the ban.
For procedural reasons, this provision makes it more difficult for federal courts to intervene, and they have so far refused to take up appeals against the law.
The Supreme Court has now followed suit, while noting that other challenges to the law could be filed, including in state courts.