Supreme Court refuses again to block Texas abortion law in setback for Biden administration

Oct. 22, 2021 Updated 1:35 PM PT

WASHINGTON — The Supreme Court on Friday refused again to put on hold a Texas abortion law that makes it illegal for doctors to end a pregnancy after about six weeks.

Instead, the justices said they will hear arguments next month on whether the Justice Department has standing to sue Texas over a law that denies women the right to choose abortion.

The outcome is mostly a setback for the Biden administration and abortion rights advocates. They had asked the court to block the law as constitutional and procedural issues were weighed.

Instead, the court, over a dissent by Justice Sonia Sotomayor, allowed the law to remain in effect. And the justices said they would weigh only the procedural issues, not the question of whether the Texas law is constitutional.

The Biden administration had argued that Texas was using a private bounty scheme to deny women their constitutional rights.

The Texas Heartbeat Act, known also as Senate Bill 8, authorizes private lawsuits against doctors who perform abortions after a fetal heartbeat can be detected, usually at about six weeks. State and local officials have no role in enforcing the law, but the threat of lawsuits has shut down most abortions in Texas.

It takes the votes of five justices to block or suspend a law, and it appears the court’s conservatives continue to doubt whether abortion rights advocates, including the Justice Department, can challenge a law that relies on future lawsuits by unknown individuals.

This is the second time the court has refused to block the Texas law. On Sept. 1, the conservative majority by a 5-4 vote allowed the Texas law to take effect, saying the case “presents complex and novel ... procedural questions.”

That decision drew sharp reaction because it allowed the nation’s second largest state by population to effectively ban most abortions, even though the Supreme Court has said for nearly 50 years they were constitutionally protected up to about 24 weeks.

A week later, Atty. Gen. Merrick Garland announced the Justice Department was suing Texas for violating the constitutional rights of women there. He won a ruling from a federal judge in Austin, who put the law on hold. But the U.S. 5th Circuit Court of Appeals set aside the judge’s ruling by a 2-1 vote in a one-paragraph order.

Responding quickly, the Justice Department filed an emergency appeal on Monday urging the Supreme Court to intervene.

Instead the U.S. attorneys won only a hearing on whether the federal government has standing to sue Texas. The court said it will hear arguments on that issue on Nov. 1.

Dissenting alone on Friday, Sotomayor said the court had been urged again “to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas. For the second time, the court declines to act immediately to protect these women from grave and irreparable harm,” she wrote in U.S. vs. Texas.

“Texans deserved better than this,” said Amy Hagstrom Miller, founder and chief executive of Whole Woman’s Health, which operates four clinics in Texas.

“We’ve had to turn hundreds of patients away since this ban took effect, and this ruling means we’ll have to keep denying patients the abortion care that they need and deserve.”

The justices are already set to reconsider the right to abortion in a case from Mississippi, which has imposed a 15-week limit on abortions. After winning a review of that issue, that state’s attorneys raised the stakes, arguing the court should overturn the 1973 Roe vs. Wade decision entirely and allow states to make nearly all abortions a crime.

The court will hear arguments on Dec. 1 in that case, Dobbs vs. Jackson Women’s Health Organization.