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Supreme Court's Sotomayor calls Texas abortion case a 'disaster' in blistering dissent

"I will not stand by silently as a state continues to nullify this constitutional guarantee," the liberal justice said.
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WASHINGTON — Justice Sonia Sotomayor on Thursday called the Supreme Court case involving Texas' restrictive abortion law a "disaster" and a "grave disservice to women in Texas" in a dissent that ripped into state officials and criticized some of her fellow justices.

Sotomayor issued the sharply worded dissent to a Supreme Court order that declined for the second time to send the case back to the original trial judge in Texas, a venue that the challengers of the law had hoped might provide them with some relief. The Supreme Court had sent the case back to the U.S. Court of Appeals for the Fifth Circuit, which has now delayed a resolution of the case even further while the law remains in force.

Sotomayor, joined by fellow liberal Justices Stephen Breyer and Elena Kagan, noted that when the Supreme Court ruled in December that the law could be challenged, it allowed a lawsuit to proceed narrowly against Texas medical licensing officials, rather than also including state court clerks, judges and attorney general, as the challengers had sought. But earlier this week, the appeals court asked the Texas state Supreme Court for its views on whether even those licensing officials could be sued.

"Texas wagered that this court would not mean what it said" in its December ruling, "or at least that this court would not stand behind those words, meager as they were. That bet has paid off," Sotomayor wrote in her separate dissent.

She described the Texas law, known as S.B. 8, as "a convoluted law that instills terror in those who assist women exercising their rights between 6 and 24 weeks." The law allows anyone, anywhere, to sue any person for at least $10,000 who performs or assists in an abortion after about the sixth week of pregnancy.

"State officials knew that the fear and confusion caused by this legal-procedural labyrinth would restrict citizens from accessing constitutionally protected medical care," she said.

Concluding her dissent, Sotomayor wrote: "This case is a disaster for the rule of law and a grave disservice to women in Texas who have a right to control their own bodies. I will not stand by silently as a state continues to nullify this constitutional guarantee."

The Supreme Court has yet to issue its decision in a separate case involving a Mississippi law that would ban abortion after 15 weeks of pregnancy. That case is a direct challenge to earlier Supreme Court rulings, beginning with Roe v. Wade, that said a state cannot ban abortion before the age of fetal viability, long considered to occur at around the 24th week of pregnancy.

This weekend is the 49th anniversary of the Roe decision, and opponents of abortion are hoping this will be their last protest to mark the date.

"My hope is that the Supreme Court has the courage to do what it ought to do," said Kristen Waggoner of the Alliance Defending Freedom, a conservative legal advocacy group.