Justice Sonia Sotomayor criticizes colleagues for allowing Texas abortion ban to remain in effect
Rogelio V. Solis/AP

Justice Sonia Sotomayor criticizes colleagues for allowing Texas abortion ban to remain in effect

Justice Sonia Sotomayor sent a strong reminder Friday that she is not a justice looking to carve out compromises with a conservative majority.

She knows she will be in dissent in cases that most capture the public’s attention for the foreseeable future. Still, she writes to illuminate her colleague’s missteps with the hope that someday her dissents will become majority opinions.

On Friday, after the court allowed Texas’ ban on abortion after six weeks — a law that is in direct conflict with Roe v. Wade — to remain in place, she was straightforward.

“The impact,” she wrote, “is catastrophic.”

At 67, Sotomayor, President Barack Obama’s first Supreme Court nominee, has carved out her place in the bench. Sometimes liberals Justices Elena Kagan and Stephen Breyer appear to be influencing the majority by trying to narrow a conservative holding. Sotomayor, in contrast, does not miss a chance to send up a flare.

She may be permanently in the minority, but she’s writing for the future.

Indeed when the court issued its order in the Texas case Friday — not long after the Justice Department had filed its final briefs — it was clear the justices had already discussed next steps as they deal with a law that has placed them in the center of the political dialogue. Sotomayor was ready with a seven-page dissent to point out that Roe v. Wade is effectively nullified in the country’s second-largest state.

“I cannot capture the totality of this harm in these pages,” Sotomayor wrote. But she castigated the state (which she said was empowered by the court’s previous inaction) for chilling the exercise of a right to an abortion recognized in Roe some 50 years ago.

Sotomayor outlined how clinics are faring under the constant threat of liability that she called “nothing short of agonizing.” She detailed how the most vulnerable populations in the state might be minors “who cannot confide in their families” and unaccompanied migrant teenagers who cannot reach their families. She said those women would have to choose between “carrying to term” and “taking matters into their own hands.” She also noted that clinics in neighboring states are facing a “crushing impact” of patients — comprised of those who actually had the funds to take off from work, find child care and travel.

“Those with sufficient resources may spend thousands of dollars and multiple days anxiously seeking care from out of state providers so overwhelmed with Texas patients that they cannot adequately serve their own communities,” she wrote.

Last month, she told an audience in an event hosted by the American Bar Association that she often circulates her dissents privately to try to influence decision making. But at that event she forecasted things are not going her way. She warned the audience that there was “going to be a lot of disappointment in the law” but she invoked the Texas law and urged them to become “lobbying forces in changing laws that you don’t like.”

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On Friday, for her part, Sotomayor pointed out that even though the court had agreed to fast track oral arguments for November 1, that would offer “cold comfort” to women in Texas seeing abortion care.

She said that women seeking abortion care were entitled to relief from the court, but now, the relief, even if it comes after the court hears oral arguments in November “will be too late for many.”

“Once again, I dissent.”

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