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Supreme Court allows narrow challenge to Texas abortion law

But high court declines to allow Justice Department challenge

Protesters rally outside as the Supreme Court hears two challenges to Texas' new abortion law on Nov. 1, 2021. On Friday, the court issued its ruling in the case.
Protesters rally outside as the Supreme Court hears two challenges to Texas' new abortion law on Nov. 1, 2021. On Friday, the court issued its ruling in the case. (Bill Clark/CQ Roll Call file photo)

A sharply divided Supreme Court gave abortion providers a narrow legal pathway Friday to challenge a Texas law that effectively bans the procedure after about six weeks, a ruling that keeps the law in place and sends the legal fight back to lower courts for next steps.

In a 5-4 decision, the majority said that abortion providers could pursue a lawsuit against some state officials who bring disciplinary actions, but not against Texas judges, clerks or the state attorney general.

The distinction could be key as the case returns to a federal district court in Texas, because abortion providers want to block all enforcement of the law. Being able to sue clerks would allow that to happen, but it’s not clear that suing the disciplinary officials could achieve the same result, Steve Vladeck, a University of Texas law professor, said.

At the same time, the court declined, 8-1, to revive a lawsuit brought by the Justice Department, which had argued that the federal government should be able to seek to stop Texas in a situation where a state law that curtails a constitutional right seeks to eliminate court review. Justice Sonia Sotomayor dissented.

The pair of rulings essentially means that the Texas law, written in a way that clearly violates decades of abortion rights law and with the intent of avoiding legal challenges that could prevent it from going into effect, has successfully accomplished that for now. The best path for challenges now could be through the Texas state courts, which, even if successful, could take a long time.

The Supreme Court had allowed the law to go into effect more than three months ago in a 5-4 decision. The majority found that the abortion providers had raised “serious concerns” about the constitutionality of the law, but cited the “complex and novel” procedural questions raised by its unusual design.

Texas forbade state officials from enforcing the law, and instead gave that authority to private citizens, who can file state civil actions for minimum damages of $10,000 against those who perform abortions. That so far has outflanked the typical process to halt enforcement of a law while a constitutional challenge moves through the court system.

Friday’s rulings addressed those procedural questions and did not directly address the merits of the constitutionality of the Texas abortion law.

In a partial dissent that said judges and the state attorney should be defendants, Chief Justice John G. Roberts Jr. pointed to the chilling effect the law has had on abortion rights in the state and said a district court “should resolve this litigation and enter appropriate relief without delay.”

Roberts said that the law is contrary to the court’s decisions, including Roe v. Wade in 1973, which found that states could not enact laws to ban abortions before viability, or when a fetus could survive outside the womb on its own, at about 24 weeks of pregnancy.

“It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution,” Roberts said.

And Roberts, in a footnote in his part of the opinion joined by the three justices on the liberal wing of the court, said the state tried “to legislate away a federally protected right.”

Sotomayor, in a separate dissent joined by Justices Stephen G. Breyer and Elena Kagan, wrote that Friday’s ruling did not show courage to defend the court and “leaves all manner of constitutional rights more vulnerable than ever before.”

“In the months since this Court failed to enjoin the law, legislators in several States have discussed or introduced legislation that replicates its scheme to target locally disfavored rights,” Sotomayor wrote.

During oral arguments, the justices heard that Texas’ novel enforcement scheme for its abortion law could be used by states to neutralize other constitutional rights related to guns, protests, campaign finance and more.

“Although some path to relief not recognized today may yet exist, the Court has now foreclosed the most straightforward route under its precedents,” Sotomayor wrote. “I fear the Court, and the country, will come to regret that choice.”

Justice Neil M. Gorsuch, writing for the majority, said that there are other options for challenging such laws. There are 14 such state court cases that seek to vindicate both federal and state constitutional claims against the Texas lawn known as SB 8 — and they have met with some success at the summary judgment stage, Gorsuch wrote.

“Separately, any individual sued under S. B. 8 may pursue state and federal constitutional arguments in his or her defense,” Gorsuch wrote. “Still further viable avenues to contest the law’s compliance with the Federal Constitution also may be possible; we do not prejudge the possibility.”

And Gorsuch wrote that many federal constitutional rights are asserted as defenses, not in pre-enforcement cases like this one.

“The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments,” Gorsuch wrote.

And he said Congress “is free to provide” more tools to combat this type of law, and pointed to a House-passed measure. “But one thing the Court may never do is disregard the traditional limits on the jurisdiction of the federal courts just to see a favored result win the day,” Gorsuch wrote.

Attorneys for the abortion providers said the ruling means they now won’t be able to get a federal court injunction that would eliminate the threat of lawsuits against clinics and doctors. That threat prompted clinics to stop offering procedures in the state after that early stage of pregnancy.

“Make no mistake, while the court allowed our legal challenge to proceed against some state licensing officials, an injunction against those officials will not block Texas’ bounty hunting scheme,” said Marc Hearron, the senior counsel at the Center for Reproductive Rights who argued for the abortion providers at the Supreme Court.

In the Justice Department case, the Supreme Court initially agreed to decide whether the United States has the right to file a lawsuit against Texas to get an injunction to stop enforcement of the law. The justices dismissed that case without a decision as “improvidently granted.”

The Justice Department argued it can file a lawsuit against the state to stop “a series of tricks to try to evade the Constitution directly.” A federal district court judge ordered Texas to stop enforcing the abortion law in that case, but an appeals court later ruled that the state could keep its ban in place as the legal fight continued.

People For the American Way Executive Vice President Marge Baker said that the group was encouraged that the Supreme Court allowed the lawsuit to go forward, but criticized how the justices did nothing to stop the existing ban.

“We are now forced to take part in a nightmarish waiting game as the right to control one’s own body is held hostage by a Far Right Supreme Court,” Baker said in a release. “We can only hope that in the end the Court does not rule to abolish this fundamental right.”

Separately, the court is set to decide by the end of the term at the end of June whether to uphold Mississippi’s ban on the procedure after 15 weeks of pregnancy — the first major test for a decadeslong conservative legal push to wipe out previous abortion decisions.

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