The U.S. Supreme Court today let abortion clinics bring a legal challenge to a Texas ban on abortions performed after six weeks into a pregnancy. It merely said the abortion providers had legal standing to bring their challenge against state licensing officials, while leaving the abortion law in place for now, with the fate of a provision that allows private citizens to sue to enforce it up in the air.
The Court heard oral arguments in the case, Whole Woman’s Health v. Jackson, on November 1, lifted a stay on lower court proceedings, which may pave the way for a federal judge to issue an injunction against the law. On September 1, the Supreme Court had declined to block the Texas abortion law. The Court in a separate ruling dismissed a challenge brought by President Joe Biden’s administration.
The law bans abortions at around six weeks, when many women still do not realize they are pregnant, and has no exception for pregnancies occurring due to rape or incest.
The Supreme Court has yet to decide another lawsuit, challenging a Mississippi abortion law, that some think could lead to the overturning of the 1973 Supreme Court rulings (Roe v. Wade and Doe v. Bolton) that legalized almost all abortions nationwide.
The abortion providers and the Biden administration had asked the Supreme Court to block the Texas law while the lawsuit against it continues, but the justices opted to leave the law in place for now.
“We won, on very narrow grounds. Our lawsuit can continue against the health department, medical board, nursing board and pharmacy board. We’d hoped for a statewide injunction, but no clear path to it” remains, said Whole Woman’s Health, the abortion provider that challenged the law.
Pro-life activists welcomed the Supreme Court’s decision not to block the law.
“We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts,” said Marjorie Dannenfelser, head of Susan B. Anthony List.
The court in the Texas case, in an 8-1 decision authored by conservative Justice Neil Gorsuch, ruled that a narrow challenge was allowed under a 1908 Supreme Court precedent, Ex Parte Young, that said state laws can be challenged in federal court by suing state government officials.
Texas had sought to exploit a loophole in that earlier ruling by saying no state officials could enforce it, but the Supreme Court said the challengers could pursue their case by naming state licensing officials as defendants.
Justice Clarence Thomas dissented on that part of the ruling, saying he would have dismissed the lawsuit in its entirety, against all defendants.
The Texas law, called S.B. 8, lets private citizens sue anyone who performs an abortion after heart activity is detectable in the embryo. Individual citizens can receive a bounty of $10,000 for bringing successful lawsuits under the law.
The fact that Texas’ law relied on such private enforcement by unnamed and unknown parties, rather than state prosecutors or the state attorney general to enforce it, made it more difficult to directly sue the state to challenge the law’s legality, helping shield the measure from being immediately blocked.
Chief Justice John Roberts, joined by the court’s three progressive justices, agreed that licensing officials can be sued, but said the abortion clinics could also target other officials, including state court clerks and the attorney general.
Roberts criticized the Texas law as deliberately designed to evade and “nullify” the Supreme Court’s precedents on abortion, effectively denying women a constitutional right. The court cannot allow legislatures to evade Supreme Court rulings, Roberts said.
“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,” Roberts said.
Writing for the majority, Justice Gorsuch said that state judges and clerks are improper proper targets for lawsuits against the abortion ban.
“Judges exist to resolve controversies about a law’s meaning or its conformance to the federal and state constitutions, not to wage battle as contestants in the parties’ litigation,” Gorsuch said.
Abortion clinics and the Biden administration said that the law violates a woman’s constitutional right to terminate a pregnancy recognized in the Roe v. Wade ruling and was improperly designed to frustrate and evade judicial review of its constitutionality.
A separate Mississippi law – blocked by lower courts – bans abortions starting at 15 weeks of pregnancy, restricting abortions starting later in pregnancy than the Texas law. The Supreme Court’s more conservative justices during oral arguments in the Mississippi case on Dec. 1 indicated sympathy toward the Mississippi measure and potential support for overturning Roe.
How the conservative justices voted in the Texas case may not predict how they vote on the Mississippi law because the legal issues differ, and because the Mississippi law, unlike the Texas law, does not have an unusual enforcement mechanism.