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Texas abortion law: SCOTUS lets law continue but says providers can sue


It provides a narrow victory for the abortion clinics, allowing them to get into court. But at the same time, the court limited which state officials could be sued by the providers, which could make it difficult for the providers to resume providing abortions after the sixth week of pregnancy.

In statements after the decision came down, the abortion advocates who had challenged the law painted the Supreme Court’s decision as a disappointment for how it will hinder the clinics’ ability to continue to fight the ban in court.

“While the Court did not put a complete end to our legal challenge, its failure to stop Texas’s deliberate nullification of the constitutional right to abortion within its borders makes the Court complicit in widespread chaos and harm to Texans, and responsible for giving the green light for other states to circumvent the constitution through copycat laws,” Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement.

The question of whom providers’ can sue in the federal court — while seemingly technical — could be hugely consequential in the abortion advocates’ efforts to block the law in a way that will let abortions resume after six weeks. By limiting whom abortion providers can sue, the Supreme Court left open the possibility that the abortion providers may ultimately win ruling in their favor, but because it only blocks those select officials from enforcing the law, it won’t be enough to allow clinics to reopen their doors.

That is because of the six-week ban’s novel enforcement mechanism. The law allows private citizens — from anywhere in the country — to bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law.

If lower courts are only allowed to issue orders blocking the select state officials from enforcing the ban, it is unclear if that will be enough to allow clinics to resume the procedure, as they might still face state court litigation from private citizens seeking to enforce the ban.

“The providers won in the sense that their challenge to SB8 is allowed to go forward against these state licensing officials, but more importantly, they lost in the sense that they can’t sue anyone else — so that even if their suit succeeds, it’s unlikely to provide them with the relief they need to reopen their doors, that is, to prevent future lawsuits against them for performing abortion,” said Steve Vladeck, a CNN legal analyst and a professor of law at the University of Texas School.

READ: Supreme Court rulings in Texas abortion case

Justice Sonia Sotomayor, writing for her liberal colleagues, said the court should have gone much further, and blocked the law from going into effect when it had the chance back in September while the appeals process played out.

“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” she said.

Sotomayor said it was a good thing that the challengers would be able to go into court to challenge the law and that she hoped that a district court would “act expeditiously” to enter the relief.

But, she said, because the court limited which officials could be sued, it will make the legal challenges more difficult to bring, which in turn, could make it more difficult for the providers to open their doors again.

She claimed that the Supreme Court, by the limits it put on who could be sued in court, “effectively” invited other states to use the law as a model to nullify other federal rights, asserting that, “The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

The court’s order came after oral arguments where two of the court’s conservative justices called into question Texas’ argument that the law could not be challenged by either abortion providers or the Biden administration in federal court.

The law has been in effect for more than three months.

On September 1, the Supreme Court, in a 5-4 vote, allowed the law to go into effect while the appeals process played out with Chief Justice John Roberts siding with the liberals in a dissent. Since then, women in Texas have scrambled across state borders to obtain the procedure and poor women — without the means to travel — were left with few options.

In this latest decision, court said in an 8-1 vote that abortion providers should be allowed to sue in federal court, with only Justice Clarence Thomas saying in a dissent that he would have thrown out the providers’ case.

By a 5-4 vote, the Supreme Court’s conservative majority said that the providers could not sue state court clerks, as clinics had sought to do in their efforts to short-circuit the private state court litigation that could be brought against them for violating the six-week ban. Chief Justice John Roberts said that the Court should have allowed lawsuits to proceed against those and other officials.

“Court clerks, of course, do not ‘usually’ enforce a State’s laws,” Roberts wrote in a dissent joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor. “But by design, the mere threat of even unsuccessful suits brought under S. B. 8 chills constitutionally protected conduct, given the peculiar rules that the State has imposed.” He was deeply critical of the law which he said had a “clear purpose and actual effect” to “nullify this Court’s rulings, as he stressed that other states –inspired by the Texas law—could target other constitutional rights.

“If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery,” he wrote.

Writing for the majority, Justice Neil Gorsuch defended the limits that the court put on whom the providers can sue.

“This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court,” Gorsuch wrote.

He pushed back on warnings from Sotomayor, in her own dissent, that other states may now mimic the states’ approach.

“Doesn’t that possibility justify throwing aside our traditional rules?” Gorsuch asked rhetorically. “It does not. If other States pass similar legislation, pre-enforcement challenges like the one the Court approves today may be available in federal court to test the constitutionality of those laws.”

The court on Friday also issued an unsigned order dismissing a separate lawsuit brought by the Justice Department in its own challenge to Texas’ six-week abortion ban. Justice Sotomayor dissented from that decision.

“The Department of Justice brought suit against Texas Senate Bill 8 because the law was specifically designed to deprive Americans of their constitutional rights while evading judicial review,” Justice Department spokesperson Anthony Coley said in a statement after the decision came down. “The department will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”

When oral arguments in both the DOJ’s and providers’ cases were heard last month, lawyers fighting the law called it blatantly unconstitutional and designed with the express intent to make challenges in federal court nearly impossible, therefore nullifying a woman’s constitutional right to an abortion.

“Texas designed SB 8 to thwart the supremacy of federal law in open defiance of our constitutional structure,” said Solicitor General Elizabeth Prelogar, arguing for the Justice Department, during oral arguments on November 1. “States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the court’s decisions in their borders and block the judicial review necessary to vindicate federal rights.”

SB 8, the law in question, bars abortions after the detection of a fetal heartbeat at around six weeks — often before a woman knows she is pregnant — and is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

While both the providers and the Biden administration had won challenges in federal district court, the conservative 5th US Circuit Court of Appeals reversed those decisions and allowed the law to remain in effect.

Anti-abortion activists celebrated the Supreme Court’s rejection of the Justice Department’s lawsuit and vowed to continue to defend Texas’ ban as the legal action moved back to lower courts.

“We are grateful that the Supreme Court practiced judicial restraint today and stopped the Biden administration’s pro-abortion campaign against the strongest Pro-Life law being enforced today,” Texas Right to Life Director of Media and Communication Kimberlyn Schwartz said in a statement.

Progressives meanwhile acknowledged that the Supreme Court had not granted abortion rights advocates the sweeping victory they were hoping for.

“The Supreme Court has taken the minimal step of allowing abortion providers to continue their lawsuit against this horrific Texas scheme,” Russ Feingold, the president of the left-leaning legal advocacy group, the American Constitution Society, said in a statement that noted that the Supreme Court had left the ban in effect.

“While we are relieved that some lawsuits may proceed, every day the judiciary fails to uphold well-established constitutional rights compounds the harm to pregnant people, to the legitimacy of our judiciary, and to the credibility of the Supreme Court,” Feingold said.

This story has been updated with additional developments Friday.

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