U.S. Justice Dept. to ask Supreme Court to put Texas abortion law on hold -spokesman

(Reuters) -President Joe Biden’s administration on Friday said it will ask the U.S. Supreme Court to block a restrictive Texas law that imposes a near-total ban on abortion after a federal appeals court reinstated the law.

The U.S. Justice Department will request the Supreme Court, which has a 6-3 conservative majority, to reverse the 5th U.S. Circuit Court of Appeals’ decision to lift a judge’s order blocking the law, while litigation over the dispute continues, a spokesman said.

The Texas measure, which bans abortion after about six weeks of pregnancy, took effect on Sept. 1. It makes an exception for a documented medical emergency but not for cases of rape or incest.

The law is unusual in that it gives private citizens the power to enforce it by enabling them to sue anyone who performs or assists a woman in getting an abortion after cardiac activity is detected in the embryo. That feature has helped shield the law from being immediately blocked as it made it more difficult to directly sue the state.

Critics of the law have said this provision lets people act as anti-abortion bounty hunters.

(Reporting by Andrew Chung and Brendan O’Brien; Additional reporting by Sarah Lynch; Editing by Daniel Wallis)

U.S. Supreme Court weighs Kentucky official’s bid to defend abortion law

By Andrew Chung

(Reuters) – In another case stemming from a restrictive abortion law, U.S. Supreme Court justices on Tuesday signaled a willingness to let Kentucky’s Republican attorney general defend his state’s statute – struck down by lower courts – after its Democratic governor dropped the case.

The arguments heard by the nine justices did not involve the legality of the 2018 law, focusing instead on the narrow legal issue of whether Kentucky Attorney General Daniel Cameron can take over the defense of it in a bid to revive the measure.

The dispute highlighted the sometimes messy conflicts that arise when a governor and a state’s top legal officer differ in political views or party, leading to disagreements on whether to defend certain state laws in court.

Both liberal and conservative justices asked questions during the argument that indicated sympathy toward ensuring that Cameron, as attorney general, retains the power to act even after the political party of the governor changes hands.

Republican-backed abortion restrictions enacted by numerous U.S. states in recent years have continued to draw the attention of the nation’s highest judicial body.

Abortion rights advocates have said that Kentucky’s law would effectively ban an abortion method called dilation and evacuation – the most common form performed during the second trimester of a pregnancy – effectively banning abortions after 15 weeks of pregnancy.

The justices must decide whether Cameron can now try to defend the law after lower courts already ruled that it violated Supreme Court precedents holding that women have a right under the U.S. Constitution to obtain an abortion. Governor Andy Beshear’s administration dropped the case.

Abortion opponents are hopeful that the court, which has a 6-3 conservative majority, will pare back abortion rights this term. The justices will hear arguments in December over a Mississippi law that bans abortion after 15 weeks of pregnancy, a case in which that state is asking the court to overturn the 1973 Roe v. Wade ruling that legalized the procedure nationwide.

EMW Women’s Surgical Center, an abortion clinic in Louisville, challenged Kentucky’s law, which was signed by then-Governor Matt Bevin, a Republican. Bevin subsequently lost his re-election bid to Beshear in 2019.

Liberal Justice Stephen Breyer noted during the argument that Republicans and Democrats often hold different views on abortion, and that after the new Democratic administration dropped the case Cameron stepped in.

“At that point for the first time we have an attorney general who thinks it’s a pretty good statute – he wants to defend it,” Breyer said “… So if there’s no prejudice to anybody – and I can’t see where there is – why can’t he just come in and defend the law?” Breyer asked a lawyer from the American Civil Liberties Union representing the abortion clinic.

The Beshear administration’s health department continued to defend the law in court after he took office. But after the Cincinnati-based 6th U.S. Circuit Court of Appeals struck it down in 2020, his administration decided not to press the matter further.

Cameron then sought to take over the defense. The 6th Circuit denied that request, saying it was too late for Cameron’s office to step in.

The Kentucky law is one of a growing number passed by Republican legislators at the state level imposing a variety of restrictions on abortion. The justices last month allowed a near-total ban on abortion in Texas to go into effect.

(Reporting by Andrew Chung in New York; Editing by Will Dunham)

U.S. Supreme Court rejects challenge to New York tax on opioid companies

By Lawrence Hurley and Nate Raymond

WASHINGTON (Reuters) -The U.S. Supreme Court on Monday cleared the way for New York to collect a $200 million surcharge imposed on opioid manufacturers and distributors to defray the state’s costs arising from the deadly epidemic involving the powerful painkilling drugs.

The justices declined to hear an appeal by two trade groups representing drug distributors and generic drug makers and a unit of British-based pharmaceutical company Mallinckrodt Plc of a lower court’s decision upholding the surcharge.

The law’s challengers included the Association for Accessible Medicines, whose members include drugmakers Teva Pharmaceutical Industries Plc and Mallinckrodt, and the Healthcare Distribution Alliance, which represents wholesale distributors.

The alliance’s members include the three largest opioid distributors in the United States, McKesson Corp, AmerisourceBergen Corp and Cardinal Health. They proposed in July paying $21 billion to resolve lawsuits accusing them of fueling the epidemic.

Mallinckrodt filed for bankruptcy protection in 2020 and has been seeking to finalize a similar, $1.7 billion settlement.

The payments to New York were owed under the Opioid Stewardship Act, which Democratic former Governor Andrew Cuomo signed into law in 2018 to address the costs the epidemic imposed on the state.

The law marked the first time a state had sought to impose a tax or fee related to the epidemic on opioid manufacturers and distributors. Delaware, Minnesota and Rhode Island have since adopted their own taxes.

The Association for Accessible Medicines and the Healthcare Distribution Alliance in separate statements expressed disappointment in the Supreme Court’s action. The alliance said it is evaluating its options and next steps.

Opioids have resulted in the overdose deaths of nearly 500,000 people from 1999 to 2019 in the United States, according to the U.S. Centers for Disease Control and Prevention, part of an ongoing public health crisis.

The New York law envisioned collecting $100 million annually from prescription painkiller manufacturers and distributors based on their market shares from 2019 to 2024, or $600 million in total.

A federal judge in 2018 ruled that a provision barring the companies from passing on the costs of making the payments to consumers was unconstitutional and could not be severed from the rest of the law.

The state appealed, but following that ruling New York enacted a new tax law that did not include the pass-through prohibition, limiting the case to $200 million in payments owed based on 2017 and 2018 market shares.

The New York-based 2nd U.S. Circuit Court of Appeals in 2020 handed a victory to the state, ruling that the judge lacked authority to strike down the law. The challengers then appealed to the Supreme Court.

The justices acted on the case on the first day of their new nine-month term.

(Reporting by Lawrence Hurley and Nate Raymond; Editing by Will Dunham)

Back in black: U.S. Supreme Court opens its momentous new term

By Lawrence Hurley and Andrew Chung

WASHINGTON (Reuters) -U.S. Supreme Court justices took a step back toward normalcy on Monday on the first day of their new nine-month term as they conducted oral arguments in person for the first time in 19 months due to the COVID-19 pandemic, holding a muted and polite session in a socially distanced courtroom.

The court’s term includes major cases in the coming months on abortion and gun rights.

Eight justices appeared in person, wearing their traditional black robes as they entered the ornate and sparsely populated courtroom and sat behind the mahogany bench. One justice, Brett Kavanaugh, participated remotely after testing positive for the coronavirus last week, with his questions audible via speakers in the courtroom. Justice Sonia Sotomayor wore a black face mask, while the court’s other members present went maskless.

Monday also marked the first time that the court’s junior-most member, Justice Amy Coney Barrett, participated in an in-person argument. As is customary for a new justice, Barrett, appointed by former President Donald Trump last year to replace the late Justice Ruth Bader Ginsburg, sat on the far right of the bench and was last to ask questions.

The justices were joined by lawyers, court staff and journalists – all masked, except for the lawyers arguing the cases, and spread out among the rows of seats – in their spacious column-lined courtroom. No members of the public were present.

In the first of two arguments heard on Monday, the justices expressed skepticism about Mississippi’s claim that Tennessee is effectively stealing its water from an underground aquifer that runs beneath both states.

The justices appeared to have learned some lessons from their pandemic-prompted experiment of holding oral arguments via teleconference. They seemed to use some elements of that more structured approach, with justices careful to wait their turn before speaking, in contrast with the previous rough-and-tumble format in which justices competed with each other to get a word in.

At times, Chief Justice John Roberts, seated in the center of the bench, asked each justice in turn if they wanted to pose a question. Roberts also conferred with the justices sitting on either side of him: Clarence Thomas and Stephen Breyer.

Thomas, who famously almost never spoke during in-person oral arguments in the past, had regularly participated during teleconference arguments – and quickly asked the first question of the new term, indicating he will continue to be a vocal presence.

Monday’s second argument was a Georgia criminal case involving a man convicted of being a felon possessing a firearm.

The court building has been closed to the public since March 2020 due to the pandemic.

Another change embraced by the tradition-bound court is live audio of oral arguments, a practice it had rejected until the pandemic spurred its use in May 2020. That practice continued on Monday.

Before hearing arguments, the court acted on some appeals.

It cleared the way for New York to collect a $200 million surcharge imposed on opioid manufacturers and distributors, ended Oracle Corp’s challenge to how the Pentagon awarded cloud computing contract and declined to hear a New Jersey case involving a legal defense that often protects police officers from accusations of excessive force.

ABORTION AND GUN CASES

The court, which has a 6-3 conservative majority, has come under close scrutiny after on Sept. 1 allowing a Texas law that bans abortion after six weeks of pregnancy to go into effect.

Among the cases the justices are due to hear during their new term is a challenge set to be argued in December to abortion rights involving Mississippi’s bid to revive a Republican-backed state law banning the procedure after 15 weeks of pregnancy. Mississippi has asked the justices to overturn the 1973 Roe v. Wade ruling that legalized abortion nationwide.

A few dozen people attended an anti-abortion rally outside the court. Father Frank Pavone, national director of a group called Priests for Life, led a prayer calling for the end of abortion He mentioned Trump’s three conservative Supreme Court appointees.

“All three, we are confident, will rule the right way,” Pavone said.

The justices are scheduled in November to hear a challenge backed by the National Rifle Association to New York state’s restrictions on people carrying concealed handguns in public in a case that could further undermine firearms control efforts nationally.

All nine justices, three of whom are over age 70, have been vaccinated against COVID-19, which has proven to be particularly dangerous among the elderly.

They are being tested regularly, as well as others who attend the oral arguments. Although Kavanaugh tested positive for the coronavirus last week, the court said he had no COVID-19 symptoms. Written guidance for lawyers requires them to be tested for the coronavirus but there is no vaccine requirement.

(Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham and Scott Malone)

Biden administration urges halt to strict Texas abortion law

By Sarah N. Lynch and Jan Wolfe

(Reuters) -President Joe Biden’s administration on Friday urged a judge to block a near-total ban on abortion imposed by Texas – the strictest such law in the nation – in a key moment in the ferocious legal fight over abortion access in the United States.

The U.S. Supreme Court on Sept. 1 allowed the Republican-backed law to take effect even as litigation over its legality continues in lower courts. The U.S. Justice Department eight days later sued in federal court to try to invalidate it.

During a hearing in the Texas capital of Austin, Justice Department lawyers asked U.S. District Judge Robert Pitman to block the law temporarily, saying the state’s Republican legislature and governor enacted it in an open defiance of the Constitution.

“There is no doubt under binding constitutional precedents that a state may not ban abortions at six weeks,” said Brian Netter, the lead Justice Department attorney on the case.

“Texas knew this but, it wanted a 6-week ban anyway. So this state resorted to an unprecedented scheme of vigilante justice.”

The Texas law bans abortions starting at six weeks of pregnancy, a point when many women may not realize they are pregnant. About 85% to 90% of abortions are performed after six weeks. Texas makes no exception for cases of rape and incest.

It also lets ordinary citizens enforce the ban, rewarding them at least $10,000 if they successfully sue anyone who helped provide an abortion after fetal cardiac activity is detected.

Will Thompson, an attorney in the Texas Attorney General’s Office, countered the Justice Department’s arguments, saying there were plenty of opportunities for people in Texas to challenge the law on their own, and claiming the Department’s arguments were filled with “hyperbole and inflammatory rhetoric.”

“This is not some kind of vigilante scheme, as opposing counsel suggests,” said Thompson. “This is a scheme that uses lawful process of justice in Texas.”

Pitman, who was appointed by Democratic former President Barack Obama in 2014, at one point seemed skeptical of Thompson’s arguments, telling him Texas seems to have “gone to great lengths” to make its abortion ban difficult to challenge in court.

The judge said: “My obvious question to you is: If the state is so confident in the constitutionality of the limitations on woman’s access to abortion, then why did it go to such great lengths to create this private cause of action rather than do it directly?”

Thompson responded that laws providing for enforcement are not as unusual as the Justice Department has claimed.

In the 1973 Roe v. Wade ruling that legalized abortion nationwide, the Supreme Court recognized a woman’s constitutional right to terminate a pregnancy.

The high court in December is due to hear arguments over the legality of a Mississippi abortion law in a case in which officials from that state are asking the justices to overturn Roe vs. Wade.

The Mississippi and Texas laws are among a series of Republican-backed measures passed by various states restricting abortion.

Since the Texas law went into effect, the four Whole Woman’s Health abortion clinics across the state have reported that patient visits have plummeted and some staff have quit.

In addition to infringing on women’s constitutional rights to seek an abortion, the Justice Department argued that the law also impedes the federal government’s own ability to offer abortion-related services.

In an effort to counter those claims, attorneys for the state on Friday played clips from depositions of various senior U.S. government officials.

In one clip, lawyers interrogated Alix McLearen, a senior official at the Bureau of Prisons who, in response to questions, testified that there were currently no pregnant inmates being held at certain detention facilities in Texas.

In another clip, Laurie Bodenheimer of the Office of Personnel Management was asked whether any insurance carriers had raised concerns about the impact or effect of the Texas law.

“To my knowledge no carrier has raised concerns about SB8,” she said.

The Justice Department’s Netter told the judge that Texas had cherry-picked some of the sound bites in the videos and edited out the portions in which Department attorneys had objected during the depositions.

Netter noted, for instance, that Texas conveniently omitted a portion of McLearen’s testimony in which she said the prisons bureau has pregnant inmates incarcerated currently at FMC Carswell, which he noted is “the only secure medical facility for women” in the entire country.

“It is irreparable injury for there to be a violation of the Supremacy Clause,” Netter said, referring to the Constitutional principle that establishes that federal laws have supremacy over state laws.

More than 600 marches are planned around the United States on Saturday to protest the Texas law.

In Washington, D.C., protesters will march to the U.S. Supreme Court to decry the court’s 5-4 decision in September that denied a request from abortion and women’s health providers to enjoin enforcement of the ban.

(Reporting by Jan Wolfe and Sarah N. Lynch in Washington; Editing by Will Dunham, Alistair Bell and Dan Grebler)

In political crosshairs, U.S. Supreme Court weighs abortion and guns

By Lawrence Hurley and Andrew Chung

WASHINGTON (Reuters) – Just before midnight on Sept. 1, the debate over whether the U.S. Supreme Court’s conservative majority will dramatically change life in America took on a new ferocity when the justices let a near-total ban on abortion in Texas take effect.

The intense scrutiny of the court will only increase when the justices – six conservatives and three liberals – open their new nine-month term on Monday. They have taken up cases that could enable them to overturn abortion rights established in a landmark ruling 48 years ago and also expand gun rights – two cherished goals of American conservatives.

In addition, there are cases scheduled that could expand religious rights, building on several rulings in recent years.

These contentious cases come at a time when opinion surveys show that public approval of the court is waning even as a commission named by President Joe Biden explores recommending changes such as expanding the number of justices or imposing term limits in place of their lifetime appointments.

Some justices have given speeches rebutting criticism of the court and questions about its legitimacy as a nonpolitical institution. Its junior-most member Amy Coney Barrett, a conservative confirmed by Senate Republicans only days before the 2020 presidential election, said this month the court “is not comprised of a bunch of partisan hacks.”

“There’s no doubt that the court’s legitimacy is under threat right now,” lawyer Kannon Shanmugam, who frequently argues cases at the court, said at an event organized by the conservative Federalist Society. “The level of rhetoric and criticism of the court is higher than I can certainly remember at any point in my career.”

The court’s late-night 5-4 decision not to block the Republican-backed Texas law banning abortions after six weeks of pregnancy put abortion-rights advocates including Biden on high alert.

The justices now have a chance to go even further. They will hear a case on Dec. 1 in which Mississippi is defending its law banning abortions after 15 weeks of pregnancy. Mississippi’s Republican attorney general is asking the court to overturn the 1973 Roe v. Wade ruling that legalized abortion nationwide and ended an era when some states banned it.

In another blockbuster case, the justices could make it easier for people to obtain permits to carry handguns outside the home, a major expansion of firearms rights. They will consider on Nov. 3 whether to invalidate a New York state regulation that lets people obtain a concealed-carry permit only if they can show they need a gun for self-defense.

CONGRESSIONAL HEARINGS

Former President Donald Trump was able to appoint three conservative justices including Barrett who tilted the court further rightward, with the help of maneuvering by a key fellow Republican, Senator Mitch McConnell.

The Democratic-led Congress has held two hearings in recent months on how the court has increasingly decided major issues, including the Texas abortion one, with late-night emergency decisions using its “shadow docket” process that lacks customary public oral arguments.

“The Supreme Court has now shown that it’s willing to allow even facially unconstitutional laws to take effect when the law is aligned with certain ideological preferences,” Democrat Dick Durbin, the Senate Judiciary Committee’s chairman, said on Wednesday.

Conservative Justice Samuel Alito in a speech on Thursday objected to criticism that portrays the court’s members as a “dangerous cabal that resorts to sneaky and improper methods.”

“This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution,” Alito said.

Conservative Justice Clarence Thomas last month said judges are “asking for trouble” if they wade into political issues. Thomas has previously said Roe v. Wade should be overturned, as many conservatives have sought.

Liberal Justice Stephen Breyer noted in a May speech that the court’s legitimacy relies in part on avoiding major upheavals in the law when people have come to rely on existing precedents.

“The law might not be perfect but if you’re changing it all the time people won’t know what to do, and the more you change it the more people will ask to have it changed,” Breyer said.

Abortion rights advocates have cited the fact that Roe v. Wade has been in place for almost a half century as one reason not to overturn it.

Breyer, at 83 the court’s oldest member, himself is the focus of attention. Some liberal activists have urged him to retire so Biden can appoint a younger liberal who could serve for decades. Breyer has said he has not decided when he will retire.

George Mason University law professor Jenn Mascott, a former Thomas law clerk, said the justices should not be swayed by public opinion.

“What the justices have said they want to do is decide each case on the rule the law,” Mascott said. “I don’t think they should be thinking that the perception would be that they are too partisan one way or another.”

(Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham and Scott Malone)

U.S. Supreme Court to hear Boston Christian flag dispute

By Lawrence Hurley

WASHINGTON (Reuters) – The U.S. Supreme Court on Thursday agreed to hear a group’s challenge to Boston’s rejection of its request to fly a flag bearing the image of a Christian cross over city hall in a case involving religious and free speech rights.

The justices will consider an appeal by a Christian group called Camp Constitution of a lower court ruling in favor of the city, taking up the case four days before the start of their new nine-month term.

Camp Constitution is a volunteer group that teaches classes on U.S. history and current events. It unsuccessfully applied to raise a flag with a Christian cross on it over city hall in 2017. It noted that Boston had granted hundreds of requests brought by other private groups seeking to raise various flags.

The group said the city’s refusal to grant the request violated the U.S. Constitution’s First Amendment guarantee of freedom of speech. Part of the city’s defense is that raising the flag might violate another section of the First Amendment that prohibits government endorsement of religion.

Lower courts sided with the city, with the Boston-based 1st U.S. Circuit Court of Appeals finding in January that raising the flag would represent a form of government speech, which gives the city more leeway to decide what speech is allowed.

The city had never previously denied a request and had previously approved flags of other countries and private organizations, including the LGBT pride flag.

The court will hear oral argument early next year, with a ruling due by the end of June.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

Analysis: U.S. Supreme Court’s rightward lurch put Roe v. Wade on the brink

By Lawrence Hurley

WASHINGTON (Reuters) – During a 2016 presidential debate, then-candidate Donald Trump made a statement that seemed brash at the time: If he were elected and got the chance to nominate justices to the U.S. Supreme Court, the Roe v. Wade ruling that legalized abortion would be overturned.

By this time next year, with the court having tilted further to the right thanks to Trump’s three appointments to the nation’s highest court, his prediction could come true.

The court’s decision on Wednesday night to allow Texas’ six-week abortion ban to go into effect in apparent contravention of the 1973 Roe decision suggests the court is closer than ever to overturning a ruling U.S. conservatives have long reviled.

“We don’t know how quickly or openly the court will reverse Roe, but this decision suggests that it’s only a matter of time,” said Mary Ziegler, an expert on abortion history at Florida State University College of Law.

Two generations of American women have grown up with access to abortion, although its use has declined over the past decade.

But while Roe handed liberals a victory on a crucial issue of the times, it also helped to power the religious right into a galvanizing force as it worked to get the decision overturned.

Since Congress never acted to formalize abortion rights – which shows what a hot button issue it is politically – the same court that once legalized abortion has the power to allow states to ban it.

In the coming months, the court will weigh whether to throw Roe out altogether as the justices consider whether to uphold a 15-week abortion ban in the state of Mississippi.

Unlike the Texas dispute, in which the justices did not directly address whether Roe should be reversed, they will in the Mississippi case.

A ruling is due by the end of June 2022, just months before an election that will determine whether the Democrats retain their narrow majority in both houses of Congress.

The last time the Supreme Court was this close to overturning Roe, in 1992, opponents were bitterly disappointed when the court’s moderates banded together and upheld abortion rights. Although the Supreme Court had a conservative majority, it was not deemed conservative enough.

MCCONNELL’S ROLE

The reason why the outcome could be different now is in part thanks to the decades-long efforts of conservative legal activists to re-shape the court, which bore fruit during Trump’s presidency. Trump was aided by then-Senate Majority Leader Mitch McConnell as well as the death of liberal icon Justice Ruth Bader Ginsburg, which gave him a third vacancy to fill just before he lost the November 2020 election.

All three Trump nominees were pre-vetted by conservative lawyers associated with the Federalist Society legal group. All three — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were in the majority as the court allowed the Texas abortion law to go into effect.

The court now has a rock-solid 6-3 conservative majority, which means that even if one peels away – as Chief Justice John Roberts did on Wednesday and in another abortion case in 2020 – the conservative bloc still retains the upper hand.

Conservative Republican McConnell played a key role in the Senate, which has the job of confirming nominees to the bench.

Democrats’ hopes were raised early in 2016, when conservative Justice Antonin Scalia died, that what had been a 5-4 conservative majority on the high court could switch to a 5-4 liberal majority for the first time in decades. McConnell crushed those dreams, refusing to move forward with then-Democratic President Barack Obama’s nominee, Merrick Garland.

As a result, when Trump came into office in early 2017 he was able to immediately nominate Gorsuch, who was duly confirmed by McConnell’s Republican-led Senate.

Trump and McConnell then pushed through the nomination of Kavanaugh to replace the retiring Justice Anthony Kennedy in 2018 despite allegations of sexual misconduct against the nominee, which he denied. Kennedy was a conservative but had voted to uphold abortion rights in key cases, including in 1992.

Finally, in September 2020, Ginsburg died. In an unprecedented move, Trump and McConnell installed Barrett just days before Election Day on Nov. 7, leading to widespread accusations of hypocrisy but cementing the conservative majority.

Despite the favorable winds, some anti-abortion advocates are playing down the importance of the Supreme Court’s Texas ruling, and say the fate of Roe v Wade is still up in the air.

“I’ve long thought the court should overturn Roe because it is not based on what the Constitution actually says,” said John Bursch, a lawyer at conservative Christian legal group Alliance Defending Freedom, before adding: “This order doesn’t give a signal either way about what the majority will do in the Mississippi case.”

(Reporting by Lawrence Hurley; Editing by Scott Malone and Sonya Hepinstall)

U.S. Supreme Court declines to block Texas abortion ban

By Lawrence Hurley and Andrew Chung

WASHINGTON (Reuters) -Texas’ new abortion ban, the strictest in the nation, stood on Thursday after the U.S. Supreme Court refused to block it, dealing a major blow to abortion rights by leaving in place the state law, which prohibits the vast majority of abortions.

The decision is a major milestone in the fight over abortion, as opponents have sought for decades to roll back access to the procedures.

By a 5-4 vote, the justices denied an emergency request by abortion and women’s health providers for an injunction on enforcement of the ban, which took effect early on Wednesday and prohibits abortion after six weeks of pregnancy, while litigation continues.

The law would amount to a near-total ban on the procedure in Texas – the United States’ second most populous state – as 85% to 90% of abortions are obtained after six weeks of pregnancy, and would probably force many clinics to close, abortion rights groups said.

One of the court’s six conservatives, Chief Justice John Roberts, joined its three liberals in dissent.

“The court’s order is stunning,” liberal Justice Sonia Sotomayor wrote in a dissenting opinion.

“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.”

In an unsigned explanation, the court’s majority said the decision was “not based on any conclusion about the constitutionality of Texas’s law” and allowed legal challenges to proceed.

A majority of Americans believe abortion should be legal in the United States, according to Reuters/Ipsos polling. Some 52% said it should be legal in most or all cases, with just 36% saying it should be illegal in most or all cases.

But it remains a deeply polarizing issue, with a majority of Democrats supporting abortion rights and a majority of Republicans opposing them.

The decision illustrates the impact of former Republican President Donald Trump’s three conservative appointees to the nation’s highest court, who have tilted it further right. All were in the majority.

Such a ban has never been permitted in any state since the Supreme Court decided Roe v. Wade, the landmark ruling that legalized abortion nationwide, in 1973.

Texas is among a dozen mostly Republican-led states to ban the procedure once a fetal heartbeat can be detected, often at six weeks and sometimes before a woman realizes she is pregnant.

Courts had previously blocked such bans, citing Roe v. Wade.

The court’s action over the Texas ban could foreshadow its approach in another case over a 15-week ban by Mississippi in which the state has asked the justices to overturn Roe v. Wade.

The court will hear arguments in the term beginning in October, with a ruling due by the end of June 2022.

The Texas law is unusual in that it prevents government officials from enforcing the ban and instead gives private citizens that power by enabling them to sue anyone who provides or “aids or abets” an abortion after six weeks, including a person who drives someone to an abortion provider.

Citizens who win such lawsuits would be entitled to at least $10,000.

That structure has alarmed both abortion providers, who said they feel like they now have prices on their heads, and legal experts who said citizen enforcement could have broad repercussions if it was used across the United States to address other contentious social issues.

(Reporting by Lawrence Hurley; Editing by Scott Malone and Jonathan Oatis)

Texas’s near-total abortion ban takes effect after Supreme Court inaction

By Andrew Chung and Gabriella Borter

(Reuters) -A Texas ban on abortions after six weeks of pregnancy took effect on Wednesday after the U.S. Supreme Court did not act on a request by abortion rights groups to block the law, which would prohibit the vast majority of abortions in the state.

Abortion providers worked until almost the midnight deadline, when the court’s inaction allowed the most restrictive ban in the country to be enforced while litigation continues in the groups’ lawsuit challenging its constitutionality.

The law amounts to a near-total ban on abortion procedures given that 85% to 90% of abortions occur after six weeks of pregnancy, and would likely force many clinics to close, the groups said.

Such a ban has never been permitted in any state since the Supreme Court decided Roe v. Wade, the landmark ruling that legalized abortion nationwide, in 1973, they said.

At Whole Women’s Health in Fort Worth, clinic staff worked up to midnight, serving 25 patients in the 2-1/2 hours before the deadline, said spokeswoman Jackie Dilworth.

The national group said its Texas locations, also including Austin and McKinney, remained open on Wednesday.

“We are providing all abortion medication and abortion procedures, but as long as the patient has no embryonic or fetal cardiac activity,” Dilworth said. “Our doors are still open, and we’re doing everything we can to come within the law but still provide abortion care to those who need us.”

Planned Parenthood and other women’s health providers, doctors and clergy members challenged the law in federal court in Austin in July, contending it violated the constitutional right to an abortion.

The law, signed on May 19, is unusual in that it gives private citizens the power to enforce it by enabling them to sue abortion providers and anyone who “aids or abets” an abortion after six weeks. Citizens who win such lawsuits would be entitled to at least $10,000.

Abortion providers say the law could lead to hundreds of costly lawsuits that would be logistically difficult to defend.

In a legal filing, Texas officials told the justices to reject the abortion providers’ request, saying the law “may never be enforced against them by anyone.”

“Texas Right to Life is thankful that the Texas Heartbeat Act is now in effect. We are now the first state ever to enforce a heartbeat law. We still await word from SCOTUS,” spokeswoman Kimberlyn Schwartz said in a statement, using an acronym for Supreme Court of the United States.

‘ALL-OUT EFFORT’

Democratic U.S. House of Representatives Speaker Nancy Pelosi blasted the Texas move.

“This radical law is an all-out effort to erase the rights and protections of Roe v Wade,” Pelosi wrote on Twitter. Using the legislation’s number, she added, “we will fight SB8 and all immoral and dangerous attacks on women’s health and freedoms with all our strength.”

A court could still put the ban on hold, and no court has yet ruled on its constitutionality, Stephen Vladeck, a professor at the University of Texas at Austin School of Law, wrote in a tweet.

“Despite what some will say, this isn’t the ‘end’ of Roe,” he wrote.

Texas is among a dozen mostly Republican-led states that have enacted “heartbeat” abortion bans, which outlaw the procedure once the rhythmic contracting of fetal cardiac tissue can be detected, often at six weeks – sometimes before a woman realizes she is pregnant.

Courts have blocked such bans.

The state of Mississippi has asked the Supreme Court to overturn Roe v. Wade in a major case the justices agreed to hear over a 2018 law banning abortion after 15 weeks.

The justices will hear arguments in their next term, which begins in October, with a ruling due by the end of June 2022.

The Texas challenge seeks to prevent judges, county clerks and other state entities from enforcing the law.

A federal judge rejected a bid to dismiss the case, prompting an immediate appeal to the New Orleans, Louisiana-based 5th U.S. Circuit Court of Appeals, which halted further proceedings.

On Sunday, the 5th Circuit denied a request by the abortion providers to block the law pending the appeal. The providers then asked the Supreme Court for an emergency ruling.

(Reporting by Andrew Chung in New York and Gabriella Borter in Washington; Editing by Scott Malone, Gerry Doyle and Jonathan Oatis)