The U.S. Supreme Court on Friday ruled that the legal challenge brought forward by abortion providers against Texas’ abortion restriction law may continue, bringing new life into what has become the most significant effort to overturn the statute so far.
The court allowed the suit to continue on an 8-1 decision but did not stop the law’s enforcement. Instead, the suit will continue in a lower federal court where abortion providers will resume seeking to block the law, commonly referred to as Senate Bill 8.
Justice Sonia Sotomayor agreed with allowing the suit to continue but condemned the high court’s decision to leave the law in effect, saying it has had “catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas.”
“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” she wrote. “It failed to do so then, and it fails again today.”
In a separate decision, the court dismissed a separate challenge from the Biden administration.
The justices also allowed the abortion providers to sue some state licensing officials, but not state court clerks, citing difficulties surrounding sovereign immunity. This could make it difficult for providers to get the law’s enforcement blocked overall in court.
“By blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment,” Sotomayor said. “By foreclosing suit against state court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree. This is no hypothetical. New permutations of S. B. 8 are coming.”
This win for abortion providers could be short-lived as the Supreme Court considers a case from Mississippi that could put an end to constitutional protections on abortions. They are set to rule on that case next summer.
The high court handed down the decision in the Texas case five weeks after justices heard oral arguments over the law on Nov. 1. Abortions after about six weeks of pregnancy have been virtually banned in Texas for over 100 days since the law went into effect on Sept. 1.
The providers’ suit returns to U.S. District Judge Robert Pitman, who previously blocked enforcement of the law for two days. It was resumed by the 5th U.S. Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.
The suit could now follow a similar trajectory as before: If Pitman blocks the law again, abortion opponents will likely appeal to the 5th Circuit as well — and then the case could land before the Supreme Court once more.
“Finally, we have hope for an end to this horrific abortion ban,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health. “The legal back and forth has been excruciating for our patients and gut-wrenching for our staff. We’ve had to turn hundreds of patients away since this ban took effect, and the Supreme Court’s refusal to block the law means the heartbreak doesn’t end. Texans deserve abortion care in their own communities.”
John Seago, legislative director with Texas Right to Life, called Friday’s ruling a “partial victory” for abortion opponents.
“We are encouraged that the court has practiced judicial restraint for the past 100 days, as well as today, when they did not enjoin the law,” Seago said. “While this life-saving law continues in Texas, we will see unborn children and women continue to be protected in Texas.”
Katherine Franke, a professor of law at Columbia University and director of the university’s Center of Gender and Sexuality Law, said she was pleased that the Supreme Court allowed the provider’s lawsuit to continue — but the court continues to make concessions over a person’s right to an abortion.
“What the [Supreme Court] has done is reiterate what their earlier ruling was, which is that a majority does not see a constitutional emergency in this case, even though SB 8 clearly and intentionally violates established Supreme Court law,” she said.
Franke said allowing the law to stay in effect while court proceedings continue proves that abortion rights are in jeopardy more than something like religious freedom. Although Friday’s decision allows the fight against Texas’ law to continue, she said more should have been done to protect abortion rights.
“The decision could have been much worse than it was … but this decision takes place within a larger legal landscape where the underlying right that’s at stake — that the court has not even addressed yet — could very well be eliminated and overruled,” she said. “It’s not a complete loss. I wouldn’t say it’s a partial victory, but it’s not a complete loss.”
The ruling comes a day after a state district judge agreed with 14 abortion advocates and declared that the Texas law violates the state’s Constitution, though he didn’t stop it from being enforced. That ruling would likely be used as precedent in individual lawsuits filed under the statute.
Earlier this month, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a lawsuit that came after Mississippi passed a law banning most abortions after 15 weeks of pregnancy. While the Texas case before the high court focused on the validity of the unique enforcement mechanism used by the state’s abortion law, the Mississippi case puts constitutional protections for abortion access into question — and many court observers believe the justices are poised to roll back those protections.
The Supreme Court currently has a conservative supermajority, with six out of nine justices appointed by Republican presidents. Those conservative members have historically shared anti-abortion positions and, during oral arguments for the Mississippi case, they seemed open to at least partly overturn Roe v. Wade, the 1973 landmark case that helped establish constitutional protections for abortions.
If that happens, it would mean the end of legal abortions in Texas. That’s because the Texas Legislature passed a “trigger” law this year that would automatically come into effect if Roe is “wholly or partly” overturned. It would also render much of the fight over the Texas abortion law moot.
The Supreme Court on Friday also ruled on a separate case filed against Texas’ abortion law brought forward by the U.S. Justice Department. In that case, the high court found that the DOJ does not have standing to sue Texas over its abortion law, commonly referred to as Senate Bill 8. The court effectively ended the lawsuit and the Biden administration’s role in the judicial battle over the controversial law, saying it was “improvidently granted.”
The abortion providers’ lawsuit, led by Whole Woman’s Health, aims to topple the enforcement mechanism of the law. That mechanism was the focus of oral arguments in the Supreme Court’s Nov. 1 hearing of the case.
The two separate suits filed by the U.S. Department of Justice and abortion providers had brought Texas’ abortion law back before the high court months after the justices had declined to grant an emergency relief request by abortion providers seeking to stay the law while it was challenged in court.
The high court’s decision Friday was not on the law’s overall constitutionality, but rather on the procedural woes that plagued legal efforts to challenge it. During the arguments, six out of nine Supreme Court justices expressed concerns specifically over the way Texas enforces the law — and the way it could be used to limit other constitutional rights.
“There’s a loophole that’s been exploited here,” Justice Brett Kavanaugh said during the Nov. 1 hearing. “It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights — if this position is accepted here.”
Texas’ law, which bars abortions before many know they’re pregnant, had been successful in blocking procedures in the state by using the unique tactic. Its enforcement mechanism has allowed the law to buck judicial review by making it difficult to sue the law’s enforcers, which is the traditional route to stop a law from going into effect.
Courts, to block laws, typically order state officials to not enforce them. But that’s impossible under Texas’ abortion law, which made private citizens the de facto enforcers of the law by empowering them to sue those who “aid or abet” abortions past around six weeks of gestation — and promises them $10,000 if they win their lawsuit.
Melissa Murray, a professor at the New York University School of Law, said the Supreme Court’s decision Friday was likely made more on the idea that “everyone should be concerned about the implications of this kind of enforcement mechanism on the rule of law more generally — not just specifically on abortion.”
Eleanor Klibanoff contributed to this report.
This article originally appeared in The Texas Tribune, a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy.