WASHINGTON — Texas cannot escape a constitutional challenge to its six-week abortion ban, the US Supreme Court ruled Friday, reviving a fight over the strictest antiabortion law in the country months after a majority of justices refused to stop it from taking effect.
A majority of justices concluded that abortion providers who had sued the state over the law, SB 8, could proceed with at least part of their case. The court did not reach the core question of whether the Texas law is or is not constitutional. In a separate order, the court rejected an effort by the Justice Department to press ahead with the federal government’s effort to challenge the law in court.
Although the ruling is a win for the reproductive rights advocates who argued Texas couldn’t avoid a constitutional challenge, the law — which has effectively halted most abortions statewide — will remain in effect for now.
The court’s decision came a week after the justices heard arguments in a case out of Mississippi that throws into doubt decades of court precedent that have protected the right to an abortion during the earlier phases of pregnancy. The outcome of that case will affect any future legal fight over SB 8 — whether or not the court upends the core of Roe v. Wade and other landmark reproductive rights decisions will affect Texas’s future chances of defending its law in court.
Parts of Friday’s decision split the court into different factions, but, critically, the justices voted 8–1 that the abortion providers could at a minimum sue state licensing officials who were responsible for enforcing elements of SB 8. Justice Clarence Thomas was the only member of the court to dissent from that conclusion and wrote that he would have tossed out the case entirely. Justice Neil Gorsuch wrote the majority opinion.
Justice Sonia Sotomayor, joined by the two other members of the court’s liberal wing, Justices Stephen Breyer and Elena Kagan, wrote separately to make clear that they disagreed with the majority’s refusal to halt the law outright and would have widened the pool of possible state defendants that clinics could name in order to sue over the law. She warned that the majority’s narrower ruling would give other states a roadmap for trying to craft similar abortion bans in the future in the hopes of succeeding where Texas failed to avoid a legal challenge.
“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today,” Sotomayor wrote. “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”
SB 8 took effect on Sept. 1. It bans nearly all abortions after fetal cardiac activity can be detected, which is typically around the sixth week of pregnancy. Pregnancy terms are counted from the first day of a person’s most recent period, so six weeks is typically two weeks after a missed period, which is when many people first realize they might be pregnant. Early-term abortion bans are often referred to as “heartbeat” laws, but that term is misleading because a fetus’s heart valves haven’t formed at that point; an ultrasound detects electrical activity.
The justices initially declined to get involved in a fight over the law, a move that meant the law could take effect. They later agreed to take up two cases — one that was filed by a coalition of abortion providers before it took effect, and one filed by the Justice Department shortly after in September.
Neither case was far enough along for the Supreme Court to grapple with the core issue of whether SB 8 — specifically, the six-week abortion ban — is constitutional. Instead, the justices took up a critical threshold question: whether anyone could bring a lawsuit challenging the constitutionality of the law at all.
Unlike other state abortion bans that failed to survive legal challenges, Texas deputized private citizens to enforce SB 8 by filing civil lawsuits against abortion providers or anyone else suspected of helping a pregnant person obtain the procedure. Texas lawmakers and anti-abortion advocates hoped the novel structure of the law would avoid the swift court losses that other Republican-led states faced when they attempted to pass early-term bans enforced more directly by state actors like prosecutors or health officials.
Supreme Court precedent historically has drawn a line at banning abortions before a fetus is considered “viable” — meaning it can survive outside of the womb — a milestone that usually occurs at around week 24 of pregnancy at the earliest. That viability standard is what’s at issue in the Mississippi case that the court heard this month.
Texas’s position was that there was no state enforcer of SB 8, so the only way to contest the law was for a provider or someone else who had helped a pregnant person obtain an abortion to wait to be sued, and then challenge the law as a defense. During arguments in November, several members of the court’s conservative majority asked questions and made comments that suggested they weren’t convinced yet that Texas had found a way around a more sweeping constitutional challenge.
Chief Justice John Roberts Jr., joined by the court’s liberal wing, wrote that in addition to allowing the abortion providers to sue the state licensing officials, they believed that other state actors played a role in enforcing the law and could be sued as well, including Texas Attorney General Ken Paxton and state court clerks who were responsible for processing any civil enforcement suits brought under SB 8. Roberts did not join Sotomayor’s separate, stronger critique of the majority’s handling of the case.
Source: https://www.buzzfeed.com/zoetillman/supreme-court-texas-abortion-opinion
