COURT: ABORTION PROVIDERS CAN SUE
But Supreme Court justices decline to block Texas law
The Supreme Court ruled Friday that abortion providers in Texas can challenge a state law banning most abortions after six weeks, allowing them to sue at least some state officials in federal court despite the procedural hurdles imposed by the law’s unusual structure.
But the Supreme Court refused to block the law in the meantime, saying that lower courts should consider the matter.
The development was both a minor victory for supporters of abortion rights and a major disappointment to them. They had hoped that the justices would reverse course from a Sept. 1 ruling that had allowed the law, the nation’s most restrictive, to go into effect, causing clinics in Texas to curtail performing the procedure and forcing many women seeking abortions to travel out of state.
“We will continue to seek justice in the shred of the case that the court has allowed to go forward and seek every other legal means to stop this catastrophic law,” said Nancy Northup, president of the Center for Reproductive Rights, which represents the providers challenging the law.
The decision provided further evidence that the Supreme Court’s newly expanded conservative majority is intensely skeptical of abortion rights. At an argument in a separate case last week, the court seemed prepared to uphold a Mississippi law that bans most abortions after 15 weeks, a decision that
would be flatly at odds with the court’s abortion precedents.
Opponents of abortion welcomed the court’s decision in the Texas case.
“We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts,” said Marjorie Dannenfelser, president of Susan B. Anthony List, an antiabortion group.
She added that the group was anxiously awaiting a ruling in the Mississippi case, calling it “the biggest opportunity
in generations.”
The decision in the Texas case was fractured, and the majority endorsed only a narrow path to challenge the law. It allowed suits only against state licensing officials like the executive director of the Texas Medical Board, who are authorized to take disciplinary actions against abortion providers who violate the Texas law, known as Senate Bill 8.
The abortion providers “have plausibly alleged that SB 8 has already had a direct effect on their day-to-day operations,” Justice Neil Gorsuch wrote for eight of the
nine justices. “And they have identified provisions of state law that appear to impose a duty on the licensing-official defendants to bring disciplinary actions against them if they violate SB 8.”
Only Justice Clarence Thomas dissented on that point.
But Chief Justice John Roberts and the court’s three liberal members — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — wrote that this limited victory for the law’s challengers may well prove to be inadequate.
In partial dissents, they
wrote that they would have allowed more comprehensive challenges, authorizing suits against the state’s attorney general and court clerks. Sotomayor wrote that the court’s ruling could be evaded by a tweak to the Texas law, which generally bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.
Sotomayor suggested that the court had given Texas lawmakers a road map to avoid review in federal court.
“The dispute is over whether states may nullify federal constitutional rights by employing schemes like the one at hand,” she wrote. “The court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials.”
Marc Hearron, a lawyer who argued on behalf of the abortion providers in the Supreme Court, said even a successful suit against state licensing officials would give the providers only limited relief from the effects of the law.
A court could forbid licensing officials from taking disciplinary action against doctors, nurses and pharmacists who violated the law, Hearron said. But such an injunction, he said, would not bar lawsuits from private parties seeking monetary damages from clinics, doctors and others who provide abortions or help women obtain them.
“Make no mistake,” he said. “While the court allowed our legal challenge to proceed against some state licensing officials, an injunction against those officials will not block Texas’ bountyhunting scheme.”
In his own partial dissent, Roberts wrote that the Texas law was a calculated attempt to undermine the authority of the Supreme Court. The law is “contrary to this court’s decisions,” including Roe v. Wade, he wrote, and “has had the effect of denying the exercise of what we have held is a right protected under the federal Constitution.”
“The clear purpose and actual effect of SB 8 has been to nullify this court’s rulings,” he wrote, adding that “it is the role of the Supreme Court in our constitutional system that is at stake.”