WASHINGTON – The Supreme Court on Friday said that clinics challenging a Texas ban on abortion after six weeks of pregnancy could continue that fight in lower federal courts but once again permitted the law to remain in place for now.
The move, which sends the underlying controversy back to a lower court, came more than a month after the justices heard arguments in a pair of challenges to the law, including one from the Biden administration and another from abortion clinics who said the measure effectively outlawed abortion in Texas.
After months of frenzy around the Texas law, the Supreme Court’s ruling was unlikely to fully satisfy either side and abortion rights advocates described the outcome as “stunning” and “disheartening.” Those groups asserted that while the decision technically keeps their challenge alive, it severely limits their short-term options.
“The cruelty and heartache that our staff and patients have endured will continue,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, the lead plaintiff.
Associate Justice Neil Gorsuch wrote that eight members of the court agreed that the clinics’ lawsuit could continue against one set of defendants: State officials who license the clinics and who would have to determine if those facilities violate the law.
The opinion did not touch on broader constitutional questions about the Texas law, sometimes referred to as SB8. Opponents of the Texas law are likely to once again ask lower federal courts to block its enforcement, restarting a legal process that may wind up returning to the Supreme Court. Litigation over the law, meanwhile, is also moving through Texas state courts.
Reaction to the decision was swift, with anti-abortion groups generally seeing the outcome as a win and abortion rights advocates warning that it did little to stop other conservative states from adopting substantially similar bans.
White House press secretary Jen Psaki said President Joe Biden was “very concerned” about the ruling, which she said is “a reminder of how much these rights are at risk.”
Both challenges to the Texas law dealt with its enforcement provisions. Rather than outlawing the procedure after six weeks and requiring state officials to enforce the prohibition, Texas authorized and incentivized private citizens to sue providers, nurses and anyone else who helped a person obtain an abortion in violation of the law.
That effectively shut down abortions in Texas as clinics owners said they were concerned about potential liability. Many Texans seeking an abortion crossed state lines and clinics in several surrounding states reported an increase in patients.
At issue was whether a challenge to the law could even proceed in federal court given the unusual way Texas lawmakers structured the ban’s enforcement. Because the law allowed private individuals to sue over potential violations, Texas had argued it had no role in the enforcement and could not be sued.
James Bopp, general counsel for National Right to Life, said the court’s decisions were “largely a victory for the pro-life movement” because they left “lawsuits by private citizens to enforce the law intact.”
Yet Texas’ argument has met with unease from both liberal and some conservative experts who worried states might pass laws cabining other rights, such as the right to bear arms guaranteed by the Second Amendment, and tie the hands of federal courts to stop it.
That was a point raised by Chief Justice John Roberts, who agreed with the court’s decision but wrote to assert Texas was attempting to bypass the court’s review.
“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” Roberts wrote, in an opinion joined by the court’s three liberals. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
In the end, the court ruled that only state licensing officials could be sued. Advocates on both sides of the debate said that outcome would limit the ability of abortion rights groups to seek a court order temporarily blocking the law’s enforcement.
“Make no mistake, while the court allowed our legal challenge to proceed against some state licensing officials, an injunction against those officials will not block Texas’ bounty-hunting scheme,” said Marc Hearron, with the Center for Reproductive Rights, which is representing the clinic.
The Supreme Court established a constitutional right to abortion in its landmark 1973 Roe v. Wade decision. People may exercise that right up until the point that a fetus is able to survive outside the womb, roughly 24 weeks.
Associate Justice Sonia Sotomayor criticized the court in a partial dissent for not putting the law on hold while lower courts decide the case.
“The (Supreme) Court should have put an end to this madness months ago,” Sotomayor wrote. “It failed to do so then, and it fails again today.”
The court dismissed a separate appeal filed by the Biden administration.
Associate Justice Clarence Thomas, in a partial dissent, wrote that Texas officials could not be sued and said the case should have been dismissed.
Despite the attention the Texas law has received from both anti-abortion and abortion rights advocates, the two cases dealt with procedural questions about who could sue and be sued, not the law’s constitutionality. During oral arguments on Nov. 1, the justices wrestled for three hours over those issues because of the possible impact beyond abortion.
Since that time, the court heard arguments about Mississippi’s ban on most abortions after 15 weeks of pregnancy. In that case, Mississippi has asked the court to overturn Roe. A majority of the court indicated it is inclined to at least uphold the Mississippi law and may go further by granting Mississippi’s request to upend decades-old precedent.
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The Texas law, signed by Republican Gov. Greg Abbott in May, bans abortion once cardiac activity is identified in an embryo, usually around six weeks of pregnancy. The law includes no exception for rape or incest but permits the procedure for “medical emergencies.”
Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, applauded the court for leaving the Texas law in place, arguing it would save “the lives of unborn children and protecting mothers while litigation continues in lower courts.”
Elizabeth Nash, principal policy associate with the abortion rights research group Guttmacher Institute, called the court’s decision to allow the case to continue a “positive development” but said it was “unconscionable that the court is allowing the ban to remain in effect throughout the legal process.”
Similar gestational age bans on abortion in other states have been struck down for violating the Supreme Court’s precedents in Roe and Planned Parenthood v. Casey, a 1992 case that set the current cutoff for abortion at 24 weeks of pregnancy.
A 5-4 majority of the court on Sept. 1 denied a request by abortion clinics to halt the Texas law on jurisdictional grounds. The New Orleans-based U.S. Court of Appeals for the 5th Circuit declined to stop the law from taking effect. A state district judge in Austin this week ruled that some elements of the abortion law violate Texas’ constitution.
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