Joe Biden has accused the US supreme court of unleashing "unconstitutional chaos" after it made a ruling that allows Texas, the second most populous state, to enact a law banning abortions after roughly six weeks of pregnancy.
The US president hit out at the court after it issued an overnight judgment permitting the southern state to go ahead with the law, one of the most significant legal victories for anti-abortion campaigners in recent years.
The Texas law is the most prohibitive in the country, disallowing abortions once cardiac activity can be detected, which usually happens at about six weeks. Healthcare providers have said the vast majority of abortions happen after this point.
The law makes no exceptions for cases of rape or incest and allows private citizens to sue abortion providers and anyone helping a person to have the procedure.
Mr Biden said in a statement: “By allowing a law to go into effect that empowers private citizens in Texas to sue healthcare providers, family members supporting a woman exercising her right to choose after six weeks, or even a friend who drives her to a hospital or clinic, it unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts.”
The president added that he was directing his officials to look at how the federal government might be able to help women in Texas get access to safe and legal abortions and what legal tools were available to protect people from the impact of the state’s new law.
US conservatives have fought for decades to limit the impact of Roe vs Wade, the 1973 supreme court decision that established a constitutional right to abortions. Later this year, the court will hear a case from the state of Mississippi that seeks to overturn that ruling completely.
Trump appointees
Texas and Mississippi are just two in a long line of Republican-controlled states that have tried in recent years to impose strict controls on when women can seek an abortion. These cases have often been knocked down by the supreme court and many liberal activists had expected the same to happen to the new Texas law.
However, the court voted on Wednesday night by a majority of 5-4 to deny a last-minute application to put the law on hold while a full appeal is launched. The judgment was issued just before midnight without a full briefing or oral arguments as part of the court’s so-called shadow docket.
Three of those who voted in favour were justices appointed by former US president Donald Trump, although none put their name to the decision, which constituted a single unsigned paragraph. The judges include Amy Coney Barrett, who Mr Trump appointed after the death of Ruth Bader Ginsburg just a week before last year's election.
The five justices argued that because Texas had not put its officials in charge of enforcing the law, instead leaving it to citizens to bring private lawsuits, it was not clear that the supreme court had a right to intervene.
But they added: “This order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
Each of the four justices in favour of an injunction – three of them liberals – issued their own dissent against the decision.
John Roberts, who was appointed by George W Bush as chief justice in 2005, joined the liberal judges in their dissent.
He wrote: “The [Texas] legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large.
“The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”
‘Cowaredly decision’
Nancy Pelosi, Democratic speaker of the House of Representatives, said she planned to bring up legislation this month that would "codify" Roe vs Wade and "enshrine into law reproductive healthcare for all women across America".
“The supreme court’s cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health is staggering,” Ms Pelosi added. “That this radically partisan court chose to do so without a full briefing, oral arguments or providing a full, signed opinion is shameful.”
However, any such legislation is unlikely to pass the Senate, given that Democrats control the upper chamber by the narrowest of margins. Some Democratic senators, including Joe Manchin from West Virginia, also hold anti-abortion views. – Copyright The Financial Times Limited 2021