Texas designed its law in a unique way to allow abortions to be banned without a court intervening, by authorizing any private citizen to sue doctors and clinics who perform abortions on women more than approximately six weeks after a woman’s last period. The Texas law also allows any private citizen to sue people who assist women in obtaining an abortion after that time period.


A woman has a federal constitutional right to obtain an abortion during the first stage and the Texas law effectively prevents women from obtaining abortion as clinics will be unable to run the financial and other risks that come from waiting for a private person to sue them under the Texas law depriving them from their constitutional rights.

Why can't the Supreme Court intervene?

  • 4
    They could have, and they chose not to. That's the whole point of the article. Commented Sep 4, 2021 at 12:54
  • The quote seems to imply that courts are usually involved in lawmaking. That seems odd. I think the court's role normally comes later, after an action seeking to enforce a law, and that the specific circumstances of the plaintiff & defendant are considered. Commented Sep 4, 2021 at 16:24
  • @Burt_Harris In order for that to happen, someone has to violate the law, lose in court, and then appeal to try to get the law overturned. But abortion providers are not willing to take all the financial risk this entails. So the law stands by default through this intimidation process. They need a billionaire sugar daddy to cover their costs to challenge it.
    – Barmar
    Commented Sep 4, 2021 at 21:42

1 Answer 1


A good starting point would be the SCOTUS opinion, or everything on SCOTUSblog, especially the application for injunctive relief filed on Aug. 30. There is a long sequence of petitions and orders which ask the courts either to issue an injunction preventing the law from taking force, or to vacate an administrative stay of proceedings by the lower court regarding petitioner's challenge. The lower court denied the petitions, therefore petitioners turn to SCOTUS to get an injunction against the law.

Then you can turn to the SCOTUS opinion to see what the reasons were, for and against the petition. The majority position is that

an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest.

The majority concludes that

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.

Immediately after this the court comments that

federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.


it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention

The law states that

Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who

and the named respondents (government workers of various sorts) all appear to be precluded from filing an action – thus an injunction against the judge is superfluous since he cannot file a lawsuit anyhow. It is also unclear whether SCOTUS

can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.

When SCOTUS say "it is unclear" in this context, they mean that petitions did not adequately demonstrate that the court can in fact issue such an injunction.

It's not that SCOTUS cannot decide such matters after extensive consideration of the facts / arguments and discussion, it's that the standards for an emergency action require something that the court found lacking in the petition:

we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.

  • “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” - it would be hilarious (and have wide-reaching implications) if reaction to these type of laws caused that (century-old) precedent to be reversed! Commented Sep 23, 2021 at 0:09

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