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Supreme Court Justice Sonia Sotomayor’s Dissenting Opinion Today Was Absolute Fire

United States Supreme Court Associate Justice Sonia Sotomayor authored a scorching dissent after the Court ruled in a 5-4 decision to let the Texas Heartbeat Act, a draconian abortion ban, take effect on Wednesday. Associate Justices Stephen Breyer and Elena Kagan as well as Chief Justice John Roberts concurred.

Photo by Erin Schaff-Pool/Getty Images

Also known as Senate Bill 8, the medieval legislation outlaws abortions in all cases after six weeks and deputizes private citizens to sue anyone who aides an individual looking to terminate a pregnancy, even if they are total strangers. The state even offers a $10,000 bounty to vigilantes that are able to prove their case in court.

SB8 is by far the gravest threat to the future of reproductive freedom to ever appear on the docket of the nation’s highest judicial body. And that is precisely the message that Sotomayor delivered in her fiery dissent.

“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,” Sotomayor wrote. “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.”

She had no qualms about calling a spade a spade, either.

“The Act is clearly unconstitutional under existing precedents,” Sotomayor continued. “The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law.”

But her fiercest criticism had to do with how SB8 is structured to be enforced.

“The Legislature took the extraordinary step of enlisting private citizens to do what the State could not. 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,” Sotomayor said. “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.”

She also stated the obvious, that “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,” adding that SB8 “is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas. 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. The applicants requested emergency relief from this Court, but the Court said nothing. The Act took effect at midnight last night.”

Sotomayor summed up the right-wing Court’s majority ruling as nothing short of a dereliction of its fiduciary duty to the Constitution.

“Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises ‘complex and novel antecedent procedural questions’ that counsel against granting the application, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. Moreover, the District Court held this case justiciable in a thorough and well-reasoned opinion after weeks of briefing and consideration. At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Instead, the 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. The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law,” she concluded. “I dissent.”



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