The supreme court ruled on Friday that Texas abortion providers can sue over the state’s ban on most abortions, but the justices are allowing the law, the strictest such regulation in America to date, to remain in effect.
The decision is a mixed result for reproductive health advocates at a time when social conservatives seem on the march in America and the supreme court is leaning towards restricting or outlawing abortion nationally in the future with its conservative supermajority, engineered by Donald Trump.
The Texas law is unusual in that it relies on the public, rather than the authorities, to sue those suspected of performing an abortion or aiding in the service, although not the patient undergoing the termination. The framing of the law was widely seen as a device to make it harder for the abortion ban to be challenged in federal court given the lack of state involvement in enforcing the prohibition.
Friday’s supreme court opinion, written by Justice Neil Gorsuch, gives a complicated legal response that abortion providers in Texas and beyond are likely to receive as a partial but by no means overwhelming victory. In his opinion, Gorsuch makes clear that the court in this case was not addressing the issue of abortion rights per se, or whether the Texas ban was consistent with existing federal law.
Those larger questions will fall to a separate case currently before the supreme court, Dobbs v Jackson Women’s Health Organization, out of Mississippi, which specifically seeks the overturning of Roe v Wade, the 1973 landmark supreme court ruling that paved the way for legal abortion nationwide.
That case, which could determine the future of abortion rights in the US for decades to come, was heard in oral arguments last week but is unlikely to be concluded until a ruling is issued next June.
The overall result of Friday’s opinion is that abortion providers in Texas will be allowed to press ahead with their legal challenge to the near-total ban on abortion. But their legal path forward has been narrowed and from now on they will be forced to direct their efforts at a small number of state employees.
As part of their challenge to SB 8, abortion clinics had attempted to sue a Texas state judge. That was dismissed unanimously by the nine justices as being inconsistent with a 1908 supreme court ruling that prohibits federal courts imposing injunctions on state courts.
The court ruled by a lesser margin that the providers will be able to continue challenging SB 8 by focusing on four licensing officials who would be involved in taking action against abortion clinics under the terms of the new ban. But state court clerks and the attorney general of Texas, Ken Paxton, who had been named as defendants, could not be sued.
Sonia Sotomayor, one of the three remaining liberal-leaning justices on the nine-judge supreme court bench, expressed strong views in dissent.
She said that by casting their opinion so narrowly, the conservative majority was “shrinking” from its duty to defend the supremacy of the US constitution over the whims of individual states.
“The court should have put an end to this madness months ago, before SB 8 went into effect,” she wrote in a dissenting opinion. “It failed to do so then, and it fails again today … Federal courts can and should issue relief when a state enacts a law that chills the exercise of a constitutional right.”
The legal battle to try and stop SB 8 and reopen access to abortion to millions of Texan women will now return to a lower federal court in the state capital, Austin. While it does so, however, the prohibition against almost all abortions in the state will continue to stand.
Massachusetts Democratic senator and former presidential candidate Elizabeth Warren said the Friday decision in the Texas case was outrageous.
“While Scotus has allowed challenges to SB 8 to proceed, it’s outrageous that the Court has again decided not to block Texas’ unconstitutional abortion ban,” tweeted Warren. “More Texans are harmed every day this law is allowed to stand. The Senate must pass the Women’s Health Protection Act.”
The law would codify the right to abortion access in the US into national legislation. The bill passed the House in September and is in limbo in the US Senate.
Also on Friday, the court dismissed an overall challenge to the Texas law from the Biden administration that would have blocked the ban entirely.
The law in Texas has been in effect since September, aside from a district court-ordered pause that lasted 48 hours. It bans abortions once cardiac activity is detected, usually around six weeks and before many women know they are pregnant.
While courts have blocked other state laws effectively banning abortion before a fetus can survive outside the womb, the Texas law has so far avoided a similar fate because it leaves enforcement up to private citizens, a move that many critics have said effectively creates anti-abortion bounty hunters.
The law allows anyone, anywhere to bring a suit against anyone who helps a woman obtain an abortion, and provides a $10,000 penalty against defendants found to violate the law.
Meanwhile, a judge in Texas had ruled on Thursday that the law violated the state’s constitution because it allows private citizens to sue abortion providers.
State district court judge David Peeples was ruling on the law but abortion providers had already signaled that despite the ruling, they were unlikely to resume the procedure until the supreme court announced its decision.