Supreme Court’s Roberts Sides With Liberal Bloc, Says Texas Abortion Ban May Be Unconstitutional

Supreme Court Justice John Roberts arrives at the U.S. Capitol in Washington on Jan. 31, 2020. Mark Wilson/Getty Images

The chief justice of the Supreme Court late Sept. 1 tried to block a new law in Texas, arguing that it might violate the U.S. Constitution.

Chief Justice John Roberts voted with the three justices appointed by Democrats to enjoin Texas Senate Bill 8, which bars abortions from being performed after a fetal heartbeat is detected, outside of medical emergencies.

The four, though, were outvoted by five Republican-appointed justices, who said the abortion provider plaintiffs had not “carried their burden” of showing they would likely succeed in their lawsuit.

Roberts, appointed by George W. Bush, said the law’s provisions, which block state officials from enforcing the ban and allow anybody to bring lawsuits against doctors or others involved in an illegal abortion, were “not only unusual, but unprecedented.”

“The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime,” he wrote in his dissenting opinion (pdf), with whom Justices Stephen Breyer and Elena Kagan joined.

Roberts said he would have granted preliminary relief “to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.” But he also said he wasn’t sure if the law violated the Constitution or whether the high court could intervene.

“Defendants argue that existing doctrines preclude judicial intervention, and they may be correct,” Roberts wrote. “But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.”

The new law took effect on Sept. 1. A district court hearing was scheduled for Aug. 30 that would have included arguments from the abortion providers and the defendants, which include Texas Attorney General Ken Paxton, but the hearing was canceled before it happened on an order from an appeals court, which sits above the district court but below the Supreme Court.

That prompted an emergency motion to the nation’s top court, in which providers, including Planned Parenthood, asked the justices to stop the law from taking effect.

Justices didn’t rule until late Sept. 1, giving a narrow 5–4 decision in favor of letting the law stand—at least for now.

Roberts noted that the court had to rule without rulings from either the district or appeals courts to weigh, and without a merits briefing or an oral argument.

“These questions are particularly difficult, including for example whether the exception to sovereign immunity recognized in Ex parte Young, 209, should extend to state court judges in circumstances such as these,” Roberts said.

“I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims.”

A security guard opens the door to the Whole Women's Health Clinic in Fort Worth, Texas, on Sept. 1, 2021. LM Otero/AP Photo

While the majority ruled against blocking the law, they also emphasized that “we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit” and that their decision didn’t include a conclusion about the constitutionality of the Texas law.

“Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue. But although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented. At such time the question could be decided after full briefing and oral argument, with consideration of whether interim relief is appropriate should enforcement of the law be allowed below,” Roberts wrote.

Some conservatives reacted negatively to Roberts’s vote.

“Notice who DIDN'T vote to protect babies? John Roberts. He never ceases to disgust and disappoint,” former Arkansas Gov. Mike Huckabee wrote on Twitter.

Ed Whelan, a distinguished senior fellow of the Ethics and Public Policy Center, said that “we should have expected so much better, especially from someone who often presents himself as very serious about jurisdictional limits on judicial power.”

Breyer, a Clinton appointee, and Kagan, an Obama nominee, offered separate dissents, as did Justice Sonia Sotomayor, another Obama nominee.

Roberts didn’t join with any of those dissents.

Breyer said he agreed with Roberts. He said the Texas law appears to conflict with precedent from decisions in Planned Parenthood of Southeastern Pa. v. Casey and Roe v. Wade.

“As THE CHIEF JUSTICE writes, this Court should not permit the law to take effect without assuring the applicants (and the respondents) an opportunity first and fully to make (or to refute) these and other arguments supporting the request for an injunction,” Breyer said in his opinion.

Sotomayor and Kagan offered similar dissents, with the former describing the order as “stunning” because the Texas bill is “flagrantly unconstitutional” because it was “engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”

Kagan accused colleagues of “reward[ing] Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf.”

None of the five justices who ruled against a preliminary injunction wrote concurring opinions. They are Justices Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch, all Trump nominees; Justice Samuel Alito, a George W. Bush nominee; and Justice Clarence Thomas, a George H.W. Bush nominee.