The Supreme Court left in place Friday a Texas abortion law that bars the procedure after the first six weeks of pregnancy, but the justices said that abortion providers have the right to challenge the law in federal court.
The court’s action means that the case will return to a district court for further proceedings, but it may still be difficult for providers to open their doors again.
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.
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.
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.
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.
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.
The law’s novel structure, which bars state officials from enforcing it, is a central part of the litigation.
This story has been updated with additional developments Friday.
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