LAST UPDATE | 2 Sep 2021

JOE BIDEN HAS condemned a Supreme Court decision not to block a new Texas law banning most abortions in the state, and directed federal agencies to do what they can to “insulate women and providers” from the impact.

The deeply divided court allowed the law to remain in force in the nation’s biggest abortion curb since the court legalised the operation nationwide half a century ago.

The court voted 5-4 to deny an emergency appeal from abortion providers and others but suggested the order was not likely to be the last word and other challenges could be brought.

The president said his administration will launch a “whole-of-government effort to respond to this decision” and look at “what steps the federal government can take to ensure that women in Texas have access to safe and legal abortions”.

He said women should be protected from “the impact of Texas’s bizarre scheme of outsourced enforcement to private parties”.

Biden, who has come under pressure from Democrats to expand the size of the Supreme Court, has ordered a review of the court which is due next month.

The Texas law, signed by Republican governor Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before many women know they are pregnant.

It is the strictest law against abortion rights in the US since the high court’s landmark Roe vs Wade decision in 1973, and part of a broader push by Republicans nationwide to impose new restrictions on abortion.

At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.

The court’s order declining to halt the Texas law came just before midnight on Wednesday. The majority said those bringing the case had not met the high burden required for a stay of the law.

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, 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,” the unsigned order said.

Chief Justice John Roberts dissented along with the court’s three liberal justices. Each of the four dissenting justices wrote separate statements expressing their disagreement with the majority.

Judge Roberts noted that while the majority denied the request for emergency relief “the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue”.

Justice Sonia Sotomayor called her conservative colleagues’ decision “stunning”.

“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand,” she wrote.

Texas legislators wrote the law to evade federal court review by allowing private citizens to bring lawsuits in state court against anyone involved in an abortion, other than the patient.

Other abortion laws are enforced by state and local officials, with criminal sanctions possible.

In contrast, Texas’s law allows private citizens to sue abortion providers and anyone involved in facilitating abortions.

Among other situations, that would include anyone who drives a woman to a clinic to get an abortion. Under the law, anyone who successfully sues another person would be entitled to at least 10,000 dollars.

In her dissent, Justice Elena Kagan called the law “patently unconstitutional”, saying it allows “private parties to carry out unconstitutional restrictions on the state’s behalf”.

Justice Stephen Breyer said a “woman has a federal constitutional right to obtain an abortion during” the first stage of pregnancy.

In a statement after the court’s action, Nancy Northup, head of the Centre for Reproductive Rights, which represents abortion providers challenging the law, vowed to “keep fighting this ban until abortion access is restored in Texas”.

Anti-abortion groups cheered the court’s action.

“We are celebrating this decision for what it is, baby steps in the right direction toward the obvious conclusion that Roe is fatally flawed and must go,” said Kristan Hawkins, president of Students for Life of America.