“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.

 

In another 6-3 ruling in which Trump justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett provided the deciding votes, the Supreme Court refused to carry out its own mandate and effectively prevented Texas abortion care providers from challenging the state’s six-week abortion care ban. The January 2022 ruling was in In re Whole Woman’s Health.

As discussed earlier in this blog, Texas passed a law in 2021 that banned abortions after six weeks of pregnancy and set up a troubling “bounty hunter” scheme in which destructive private lawsuits would be used to enforce the ban, effectively shutting down abortion care clinics in Texas. When abortion care providers tried to challenge the ban, Trump Fifth Circuit judges played a key role in preventing the challenges, and the Supreme Court largely agreed due to the three Trump justices. The Court did rule in December 2021, however, that providers could bring a partial challenge to the law by suing state licensing officials in federal district court. But when the case was sent back to the Fifth Circuit, Trump judge Kyle Duncan provided the deciding vote in early 2022 to refuse to promptly send the case back to the federal district court so the challenge could proceed. Instead, the Fifth Circuit agreed with the state and sent the case to the Texas Supreme Court to consider whether the challenge could properly be brought, which will inevitably at least delay relief again for abortion care providers and patients for months.  The providers promptly asked the Supreme Court to direct the Fifth Circuit to send the case back to the district court, as the Supreme Court had previously indicated was the proper procedure.

In an unsigned one-line order with no explanation, the Court majority refused to provide any relief to the providers. The three Trump justices – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — provided the deciding votes for the six-member majority. Moderate justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan strongly dissented.

The dissenting justices explained that in the Court’s December decision, eight justices had specifically “agree[d]” that the challenge could proceed in federal district court against the licensing officials, and that the Fifth Circuit’s actions “clearly defy” the Court’s judgment. But instead of “stopping a Fifth Circuit panel from indulging in Texas’ newest delay tactic,” Justice Sotomayor wrote, the majority “allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation” and detouring the case to the state supreme court. Texas has “wagered that this Court did not mean what little it said” in authorizing a lawsuit against state licensing officials, Sotomayor wrote, and that “bet has paid off.” The case is a “disaster for the rule of law and a grave disservice to women in Texas,” Sotomayor concluded, as the state “continues to nullify” the “constitutional guarantee” of the right to abortion care.

If a Trump judge had not prevented the Fifth Circuit from carrying out the Supreme Court’s decision in December, or if the three Trump justices had not provided the deciding votes in January to prevent the Court from enforcing its own decision, the providers’ challenge to at least part of the Texas law could be going forward. The case is yet another example, as part of our fight for our courts, of the importance of the Senate continuing to confirm fair-minded judges and of why judges are so important to all of our rights.