The Supreme Court of the United States has issued an opinion this Friday that represents a bittersweet victory for defenders of abortion rights. The Court has decreed that the controversial abortion law in Texas remains in force, which prohibits the termination of pregnancy in the first six weeks of gestation, but leaves the door open for clinics that perform these procedures to defy the law and can fight the challenge of the norm in federal courts. The decision of the highest judicial authority in the country thus returns the case to lower courts, leaving the door open for the law to be suspended again.
On September 1, before the silence of the Supreme Court, which in a new gesture of the conservative majority, one of the most restrictive laws against abortion in the country came into force. Known as SB 8 (Senate Bill 8 or Texas heartbeat, Texas Heartbeat Law) prohibits termination of pregnancy from six weeks gestation, even in cases of rape or incest, once the embryo’s heartbeat is detected, when the woman is not even aware of her pregnancy .
A few days later, the Joe Biden Administration reacted against the legislation passed by Texas, considering that it violated the Constitution, under whose umbrella it has granted, since 1973, the right to women to abort. The attorney general of the United States, Merrick Garland, assured that the federal government would protect the abortion clinics in case they suffered attacks. The Supreme Court justices have not entered this Friday to assess whether Texas legislation violates the right to abortion, which was recognized in the US as a result of the ruling in the case Roe vs. Wade, in which it was established that a woman can end her pregnancy in the first six months of gestation.
The right of women to have an abortion entered into a struggle between instances of judicial powers. In October, a federal judge in Austin, Texas, temporarily blocked the application of the restrictive law. The ruling by Justice Robert Pitman was part of the conflict between the State, governed by Republican Greg Abbott, and the Biden Administration.
Texas law was designed to bypass the potential blockade of federal courts by delegating responsibility for applying the law to the ordinary citizen and not to state authorities, who are often the defendants in lawsuits seeking to curb unconstitutional regulations. The Supreme Court heard arguments about the Texas law on October 31.
With today’s decision, a judicial loop is entered that continues to harm women who suffer impotent not being able to access abortion in the State of Texas. With almost total certainty, Texas will file an appeal and the case will end up again in another court of appeals, from where it will return to the Supreme Court. Of the nine Supreme Court justices, eight voted in favor of allowing the clinics case to take its course in lower courts, while Conservative Justice Clarence Thomas took a position against it. For Judge Sonia Sotomayor, who wrote the plea on behalf of her progressive colleagues, the court should have gone much further and blocked the entry into force of the law when it had the opportunity in September, while the appeals process was unfolding. “The Court should have put an end to this madness months ago, before SB 8 went into effect for the first time,” he said.
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