Supreme Court Justice Sonia Sotomayor wrote a scathing dissent late Wednesday night over after the court’s 5-4 decision to not halt Texas’ abortion bill, blasting her colleagues for opting to “bury their heads in the sand” in regards to women’s rights.
The law, which took effect early Wednesday, is thein the country, as it bans abortions once a heartbeat is detected. Sotomayor said the bill is “clearly unconstitutional” based on its precedents.
“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,” Sotomayor wrote in her dissent.
At six weeks of pregnancy, the embryo does not yet have a fully developed heart or blood vessels, and bones and muscles have not yet formed. It is not until the tenth week of pregnancy that an embryo is considered a fetus. It is not until around 24 weeks that a fetus has a chance of surviving outside the uterus.
Abortion rights groups had argued to the court that at least 85% of women who get abortions are at least six weeks pregnant, and that the bill will effectively prohibit all abortions and force many clinics to close.
Sotomayor said the court’s failure to stop the bill is “stunning” and that it “rewards tactics designed to avoid judicial review.”
“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” Sotomayor wrote, “a majority of Justices have opted to bury their heads in the sand.”
Under the bill, private citizens will be able to file civil lawsuits against abortion providers or anyone who helps women get an abortion, including those who escort a woman to a clinic or help her pay for the procedure. If a plaintiff is successful in such a suit, they are entitled to at least $10,000, according to the bill.
“The Texas State Legislature has deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures,” Sotomayor wrote, adding that the state made this decision because federal constitutional challenges to state laws are usually made against state officers in charge of those laws.
Putting the onus on “citizen bounty hunters,” she said, makes it more complicated for federal courts to get involved.
“The state’s gambit worked,” Sotomayor wrote. “…It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”
“The Act is a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas,” she continued. “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.”