Liberal Justice Sonia Sotomayor has emerged as the most vocal critic of the law, and has been especially critical that her colleagues have so far allowed it to remain in effect. In her most recent dissent — last week, when the court allowed the law to stay on the books for the second time — she said that Texas, “empowered by this Court’s inaction,” has “thoroughly chilled the exercise of the right recognized in Roe.”
Sotomayor was the only justice to say that the court should have immediately blocked the law. Liberals Elena Kagan and Stephen Breyer may have held their fire because they were placated by the fact that the court scheduled arguments so quickly or because they believe conservative votes may still be in play.
Meanwhile, “friend of the court” legal briefs flowed into the court Wednesday as parties attempted to illustrate the broad impact of its potential ruling.
Massachusetts Attorney General Maura Healey is leading a coalition of 24 attorneys general siding with the abortion providers in the state. In their brief, Healey detailed how clinics in neighboring states are overwhelmed with patients from Texas. Healey warned the justices that if they were to greenlight the Texas law, other states could draft similar laws in areas such as gun rights, marriage equality and voting rights.
Healey told the court that the states recognize the “vital role” that judicial review plays in resolving tensions between a state’s policy preference and a constitutional right. “Where longstanding precedent clearly and unambiguously forecloses a particular policy as unconstitutional, a State cannot be permitted to disregard that precedent by passing an unconstitutional law and shielding it from judicial review,” Healey argued.
Indiana and 19 other Republican-led states filed a brief in support of Texas, arguing that the district court that ruled in favor of the Department of Justice “threatens to expose every State in the Union to a suit by the federal Executive Branch whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere.”
Although on Monday the justices will limit the dispute to procedural issues related to the law and not whether it violates court precedent, they will tackle the future of Roe v. Wade in a separate dispute in December. In that case, Mississippi is defending its 15-week ban and explicitly asking to overturn Roe.
Barrett signals some sympathy for providers’ arguments in Texas abortion case