Justice Stephen Breyer, in his dissent, said that Texas was still unlawfully prohibiting first-trimester abortions, which “a woman has a federal constitutional right to obtain.”
“The Court’s order is stunning,” said Justice Sonia Sotomayor in her dissent. “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.”
“Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions,” Justice Elena Kagan wrote in her dissent.
The majority said that the abortion providers had not proven an injury from the named defendants in the case.
“[I]t is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention,” the majority wrote.
“The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law,” the majority said.
“Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law.”
This article was updated with new information on Sept. 2.
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