The Supreme Court on Friday ruled that abortion providers can continue to challenge Texas’ six-week abortion ban in lower courts but did not issue a temporary pause on Senate Bill 8.
In an 8-1 decision, the high court held that abortion providers can continue to challenge the law in federal court by suing only state licensing officials. A majority of justices also held that state court clerks, judges, the Texas attorney general and a private individual should be removed from the long list of defendants previously included in the lawsuit.
The lawsuit will now return to the lower courts and move its way back up to the Supreme Court, where justices may eventually take up the facts of the case.
SB 8, passed this year by the Texas Legislature, essentially banned abortion after six weeks of pregnancy. With typical menstrual cycles ranging anywhere from three-to-five weeks, the ban falls well before some may even start to suspect they are pregnant.
Though it does not directly punish pregnant people for seeking abortions past this timeframe, anyone thought to “aid or abet” them can face multiple lawsuits, from anyone in the country, for at least $10,000 — with no chance to recover the legal fees spent defending themselves. It includes exceptions for medical emergencies, but not for pregnancies that result from rape or incest.
Justice Sonya Sotomayor agreed with the court’s decision to allow the case to continue in lower courts. But she dissented from the conservative majority’s decision not to temporarily block the law — in what’s called a preliminary injunction — as it moves through the judicial system.
“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” Sotomayor wrote. “It failed to do so then, and it fails again today.” She was joined in her dissent by liberal justices Stephen Breyer and Elena Kagan.
In the 100 days that the law has been in effect, SB 8 has cut abortion procedures in half, according to a study by the University of Texas at Austin. Scores of Texans have traveled out of state to end their pregnancies; experts also suspect that many have increasingly opted to self manage their own abortions.
These out-of-state and out-of-country trips have long been the reality for El Pasoans. The county has not had an abortion provider for nearly two years.
SB 8 has been difficult to challenge in court because it does not allow legal authorities to enforce it. It instead enlists private individuals to sue anyone they suspect may have had — or even intended to have — a role in facilitating an abortion.
In his partial dissent, Chief Justice John Roberts wrote that “Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review.” Those stratagems, he added, posed a threat to the Supreme Court.
“The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings… 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 wrote.
In the suit, Whole Woman’s Health v. Jackson, abortion providers and advocates sued state government officials indirectly tasked with enforcing the law, such as state law clerks who would schedule SB 8-related lawsuits on the court docket.
In their Friday ruling, the majority determined that only state licensing officials, including the head of the Texas Medical Board, Texas Board of Nursing, the Texas Board of Pharmacy and the executive commissioner of the Texas Health and Human Services Commission, could be sued for enforcing the law.
Roberts also partially disagreed with this narrowed scope of defendants, arguing that only state judges should have been removed from the list of defendants.
Sotomayor predicted that following the decision, the country would soon see similar legislation on a host of other issues. “This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them,” she wrote.
In early November, the Supreme Court listened to oral arguments in two lawsuits against the controversial bill. It ruled on Friday that the second of those lawsuits, filed by the U.S. Department of Justice against the state of Texas and which sought to halt the controversial measure, cannot go forward.
This is the second partial victory in 24 hours for abortion providers. On Thursday, a state district court judge said that parts of SB 8 violate both the U.S. and Texas Constitution. That case has already been appealed to the 3rd Court of Appeals and could also go to the Texas Supreme Court.
SB 8 flouts previous Supreme Court rulings — Roe v. Wade and Planned Parenthood v. Casey — that confirm the constitutional right to an abortion until the time that a fetus can survive outside the womb, which is usually at about 23 weeks gestation.
In Roe v. Wade, the 1973 Supreme Court ruling, justices struck down a Texas law that criminalized abortions. They did so on the grounds that it violated women’s fundamental right to personal privacy, part of the Due Process Clause of the 14th amendment.
The court noted in its Roe v. Wade decision that “at the time of the adoption of the Constitution … a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.”
A more direct threat to Roe v. Wade looms in Dobbs v. Jackson Women’s Health Organization out of Mississippi, where lawmakers have outlawed abortions after 15 weeks gestation. The state’s attorney general has expressly asked justices to overturn Roe v. Wade and Planned Parenthood v. Casey.
During oral arguments on Dec. 1, questions from conservative justices indicated to many observers that the court could very well choose to strike down Roe v. Wade, in whole or in part — potentially by leaving abortion rights up to individual states. The Court will likely issue a decision on that case in summer 2022.
This spring, Texas Gov. Greg Abbott signed a law that would automatically ban abortions — again leaving exceptions for only medical emergencies — one month after Roe v. Wade is wholly or partially overturned.
Cover photo: An abortion rights march moved under the Bridge of the Americas on Oct. 2 to protest Senate Bill 8, the Texas law that effectively bans abortions after six weeks of pregnancy. (Corrie Boudreaux/El Paso Matters)