Supreme Court Allows Texas Abortion Law to Stand, But Says Abortion Providers Can Challenge It

The Supreme Court will once again allow Texas’ law that bans most abortions after about six weeks to stay in effect, it said Friday, but it will allow a group of abortion providers to challenge the law.

In a 5-4 decision, the justices said that while the providers’ lawsuit could move forward against some state licensing officials, they would not allow the providers to sue other defendants. In a separate decision, the Court dismissed the U.S. Department of Justice’s challenge to the Texas law and rejected the government’s request to reinstate a federal district court order blocking the law.

The decisions brought both hope and disappointment to abortion rights advocates. This marks the third time the high court has declined to halt the controversial Texas abortion law since it went into effect Sept. 1. The law will now continue to be in effect in Texas as the abortion providers’ case makes its way through the courts.

Justice Neil Gorsuch, who was appointed by President Donald Trump, wrote the majority opinion in the abortion providers’ case. Most of his conservative colleagues joined that opinion, but the justices’ opinions were split over details of the case.

Many of the justices wrote their own opinions. Conservative Justice Clarence Thomas dissented from the majority in part, writing that he would not have allowed the providers’ lawsuit to go forward at all. Chief Justice John Roberts filed his own opinion, too, joined by the high court’s three liberal justices, concurring in part and dissenting in part. Justice Sonia Sotomayor, joined by her two liberal colleagues Stephen Breyer and Elena Kagan, also filed a separate opinion dissenting in part and concurring in part.

Abortion rights before the Supreme Court

The high court’s decision comes at a critical moment for abortion rights in the United States. On Dec. 1, the Supreme Court heard oral arguments in another abortion case, Dobbs v. Jackson Women’s Health Organization, which presents the most direct challenge to Roe v. Wade since that case established the constitutional right to abortion in 1973. While Dobbs likely won’t be decided until the end of the Court’s term next June, the justices’ questions seemed to signal they are open to completely overturning Roe v. Wade.

Read More: Inside Mississippi’s Last Abortion Clinic—And the Biggest Fight for Abortion Rights in a Generation

The Texas law directly contradicts Roe, which said that states cannot ban abortion before fetal viability, which occurs around 24 weeks into pregnancy. In the Texas cases, the Supreme Court justices did not directly consider the constitutionality of the state’s law, known as Senate Bill 8 (SB 8). Instead, they weighed complicated procedural questions about the law’s enforcement mechanism, which had previously allowed it to avoid federal judicial review.

The law imposes the country’s most stringent abortion restrictions, prohibiting nearly all abortions after roughly six weeks, before many people know they are pregnant—with no exceptions for pregnancies resulting from rape or incest. SB 8 bars state officials from enforcing it and instead empowers private citizens to sue anyone who provides an abortion, or aids someone in obtaining one. The law also offers at least $10,000 to anyone who files a complaint.

This vigilante-style enforcement mechanism has made it difficult for those challenging the law to know who to sue. But for now, the abortion providers’ suit against some licensing officials in Texas will be allowed to return to lower courts and proceed from there.

An unusual case

During oral arguments over the two cases on Nov. 1, many of the justices seemed more interested in allowing the providers’ lawsuit to move forward than in the questions raised by the Department of Justice. Justices Brett Kavanaugh and Amy Coney Barrett appeared especially open to the challengers’ arguments that the law’s novel structure should not be allowed to insulate it from judicial review.

The Court’s decision came much more quickly than usual after the Justice Department and abortion providers each filed emergency appeals asking the high court to step in while the cases were making their ways through the lower courts.

Still, SB 8 has been in effect for more than three months, and it will remain that way unless another court rules against it.

While the Supreme Court is allowing the abortion clinics to move forward with their suit, it also limited the paths they can take to challenge the law. The conservative majority said that the abortion providers could sue several state officials but not state court judges or clerks, which would have allowed the providers to try to block the law more directly by targeting the people who accept SB 8 enforcement lawsuits. In his opinion, Gorsuch quoted a previous decision and said allowing those officials to be sued would be “a violation of the whole scheme of our Government.” In addition to the abortion providers’ narrowed suit, the justices noted that state courts could still block the law.

Sotomayor strongly disagreed with Gorsuch and her conservative colleagues’ reasoning, arguing that by rejecting the lawsuits against Texas state court officials, the high court is essentially encouraging other laws similar to the one in Texas. If the justices had said none of the challenges against the Texas law could move forward, legal scholars warned that the enforcement mechanism of private citizen lawsuits could be used to target other civil rights regardless of ideology, including gun ownership or same-sex marriage—something Sotomayor warned could still happen.

“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,“ she wrote.

Abortion is likely to remain severely restricted in Texas for some time. The risk of expensive and time consuming lawsuits has so far prevented most doctors from performing abortions that would violate the law, effectively stopping most abortion services in the state. This has meant that many Texans have traveled out of state to seek abortions over the last three months, while others have been forced to continue pregnancies they did not want, and abortion clinics have struggled to retain staff and keep their doors open under the restrictive law.

Read More: Inside The Small Group of Doctors Who Risked Everything to Provide Abortions in Texas

Now that the abortion providers’ lawsuit challenging SB 8 will return to federal court, their case can focus directly on whether the law is unconstitutional, and the dispute could ultimately end up back at the Supreme Court.

In the meantime, other states are already following Texas’ lead. Conservatives in at least half a dozen states have said they want to introduce legislation modeled after the Texas law, and Florida, Ohio and Arkansas have already done so.

Advocates on both sides of the abortion debate are also preparing for the Supreme Court’s decision in the Dobbs case, which centers on a Mississippi law that bans abortion after 15 weeks. If the Court ultimately upholds that law, it would also encourage other states to revisit previous laws or pursue new bills banning abortion early in pregnancy.