Texas abortion law case: Gorsuch responds to Sotomayor's claims of 'chilling effect'

Supreme Court allows Texas abortion law to remain in effect amid litigation

Fox News contributor Jonathan Turley and Marjorie Dannenfelser, president of Susan B. Anthony List, discuss the case, which has not yet been decided.

Supreme Court Justices Neil Gorsuch and Sonia Sotomayor clashed on Friday over claims that Texas’ controversial abortion law chills the exercise of constitutional rights.

Sotomayor partially dissented from Friday’s decision, which allowed a challenge to the law to proceed while also allowing it to remain in effect. The ruling is procedural and will not be the final word on the law’s constitutionality. 

Associate Justice Sonia Sotomayor poses in the official group photo at the U.S. Supreme Court in Washington, D.C., on Nov. 30, 2018. 
(MANDEL NGAN/AFP via Getty Images)

She argued that the court should have provided relief to Texans facing the state’s abortion restrictions. “The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy,” she wrote.

“Some women have vindicated their rights by traveling out of State. For the many women who are unable to do so, their only alternatives are to carry unwanted pregnancies to term or attempt self-induced abortions outside of the medical system.”

U.S. Supreme Court Justice Neil Gorsuch participates in taking a new "family" photo with his fellow justices at the Supreme Court building in Washington, D.C., June 1, 2017. (REUTERS/Jonathan Ernst/File Photo)
(Jonathan Ernst)

A vocal critic of Texas’ law, Sotomayor added that the court engaged in a “dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review.”


“By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government,” Sotomayor continued.

An anti-abortion demonstrator protests in front of the Supreme Court building on the day of hearing arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health in Washington, D.C., Dec. 1, 2021.
(REUTERS/Jonathan Ernst)

Gorsuch responded by claiming that the court has considered that question and previously rejected it. “[Sotomayor] contends that S. B. 8 ‘chills’ the exercise of federal constitutional rights,” he wrote. 

“If nothing else, she says, this fact warrants allowing further relief in this case … Here again, however, it turns out that the Court has already and often confronted— and rejected—this very line of thinking. As our cases explain, the ‘chilling effect’ associated with a potentially unconstitutional law being ‘on the books’ is insufficient to ‘justify federal intervention’ in a pre-enforcement suit.”

He added that “this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice … The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.”

Fox News’ Tyler Olson and Bill Mears contributed to this report.

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