Opinions Relating to Orders - 2020

Whole Woman’s Health v. Jackson

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. The Court’s order is stunning. 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. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. 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. In May 2021, the Texas Legislature enacted S. B. 8 (the Act). The Act, which took effect statewide at midnight on September 1, 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. §3 (to be codified at Tex. Health & Safety Code Ann. §§171.201(1), 171.204(a) (West 2021)). 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