Split justices leave Texas abortion law in effect, but say providers may sue
In the second-most anticipated abortion case of the year, eight justices on the U.S. Supreme Court ruled Friday that abortion providers can challenge a Texas law that has effectively banned most abortions in the state since it was allowed to take effect in September. But the court also ruled that the federal Justice Department could not intervene in the dispute, and it refused to block the law for now.
Nonetheless, the justices were sharply divided in their opinions on the case. The majority opinion in the Texas decision, Whole Woman’s Health et al. v. Jackson et al., did not directly address the fate of abortion rights in the United States. Rather, the conservative, anti-abortion majority on the court is expected to take on that larger question in a separate case out of Mississippi that was argued Dec. 1.
In fact, the majority opinion, written by Justice Neil Gorsuch, directly acknowledged as much. Whether the Texas law is constitutional “is not before the court,” he wrote. “Nor is the wisdom as a matter of public policy.”
A hint as to the coming showdown over abortion rights is included in a plurality opinion written by Chief Justice John Roberts — and joined by the three liberal justices. The Texas law, wrote Roberts,
“has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.”
The Texas law, known as SB 8, is similar to laws passed by several other states over the past few years in that it bans abortion after fetal cardiac activity can be detected, which is usually about six weeks into pregnancy. That is in direct contravention of Supreme Court precedents in 1973’s Roe v. Wade and 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey, which say states cannot ban abortion until “viability,” about 22 to 24 weeks. The Texas law also makes no exception for pregnancies caused by rape or incest.
SB 8, however, varies from other state “heartbeat” laws because it has a unique enforcement mechanism that gives state officials no role. Rather, it leaves enforcement
to the general public, by authorizing civil suits against not just anyone who performs an abortion, but also anyone who “aids and abets” an abortion, which could include those who drive patients to an abortion clinic or counsel them. Those who sue and win would be guaranteed damages of at least $10,000. Opponents of the law call that a “bounty” to encourage people to sue their neighbors.
Supporters of the law have said it was specifically designed to prevent federal courts from blocking the law, since no state officials are involved in enforcement and therefore are not responsible for it.
The question before the justices was not directly whether the Texas ban is unconstitutional, but whether either the abortion providers or the federal government could challenge it in court.