Justices limit field in Texas abortion suits
Ruling leaves law in effect, reins in who clinics can sue
WASHINGTON — The U.S. Supreme Court on Friday left in place Texas’ ban on most abortions, offering only a glimmer of daylight for clinics in the state to challenge the nation’s most restrictive abortion law.
The court’s splintered decision allows abortion providers to make their case before a district judge who once blocked the law, saying it violated the constitutional right to abortion. But the high court’s decision limited the scope in a way that lawyers said probably makes it impossible to suspend the law while the legal battle continues.
Friday’s decision, little more than a week after the court signaled that it would roll back abortion rights and possibly overturn its landmark Roe v. Wade decision, was greeted with dismay by abortion rights supporters but praised by opponents.
Five conservative justices, including three appointed by former President Donald Trump, formed a majority to limit who can be sued by the clinics.
Texas licensing officials may be sued, but not state court judges, court clerks or state Attorney General Ken Paxton, the court ruled. That is seen as likely leaving people free, under the unusual structure of the Texas law, to sue abortion clinics and anyone else who “aids or abets” an abortion performed after cardiac activity is detected in an embryo, around six weeks and before some women know they’re pregnant.
“The Supreme Court has essentially greenlit Texas’s cynical scheme and prevented federal courts from blocking an unconstitutional law,” the Center for Reproductive
Rights, which represents the Texas clinics, said on Twitter.
“We are in a period of great threat to the abortion right,” said Julie Murray, an attorney with Planned Parenthood.
But Marjorie Dannenfelser, president of the national anti-abortion group Susan B. Anthony List, said, “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.”
“Meanwhile,” she added, “we anxiously await the Court’s decision in the [Mississippi] case in which the court is directly considering the constitutionality of laws that protect unborn children and mothers prior to viability,” calling it “the biggest opportunity in generations.”
The Mississippi law bans most abortions after 15 weeks.
The Supreme Court’s 1973 Roe v. Wade ruling prohibits states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 23-24 weeks into a pregnancy.
The Texas law, which has been in place since Sept. 1., flouts Roe’s viability line by barring abortions once fetal cardiac activity can be detected, usually around 6 weeks of pregnancy.
The court acted Friday more than a month after hearing arguments over the Texas law, which makes no exceptions for rape or incest.
President Joe Biden voiced concern over the high court decision to keep the Texas law in effect and restated his support for legislation that has cleared the House of Representatives and would codify in federal law the abortion right now at risk.
“We have more work to do, but I will always stand with women to protect and defend their long-recognized, constitutional right under Roe v. Wade,” Biden said in a statement.
SOTOMAYOR OPINION
Justice Neil Gorsuch, who has consistently voted against abortion rights, did not mention Roe in his main opinion for the court Friday. Gorsuch is a Trump appointee, along with Justices Brett Kavanaugh and Amy Coney Barrett.
So far there have not been five votes on the nine-member court to put the law on hold while the legal fight plays out
“The Court should have put an end to this madness months ago, before S.B. 8 [Senate Bill 8] first went into effect. It failed to do so then, and it fails again today,” Justice Sonia Sotomayor wrote in a separate opinion Friday.
Joined by her fellow liberal justices, Stephen Breyer and Elena Kagan, Sotomayor said the court’s refusal to block the law “betrays not only the citizens of Texas, but also our constitutional system of government.”
The court’s conservative majority also has the opportunity to roll back abortion rights in the Mississippi case that was argued last week, although that decision is not expected until spring.
If Roe is overruled, the fight over the Texas law would be largely beside the point because Texas is one of 12 states with a trigger law that would ban abortion in a post-Roe world.
Friday’s high court ruling came a day after a state court judge in Texas ruled that the law’s enforcement, which rewards lawsuits against violators by awarding judgments of $10,000, is unconstitutional, yet left the law in place.
Critics of the decision also said it would encourage other states to adopt copycat laws on abortion and allow for attacks on other constitutional rights.
The fight over the Texas law is focused on its unusual structure and whether it improperly limits how the law can be challenged in court. Texas lawmakers handed responsibility for enforcing the law to private citizens rather than to state officials.
The law authorizes lawsuits against clinics, doctors and others who perform or facilitate a banned abortion. The case raised a complex set of issues about who, if anyone, can sue over the law in federal court, the typical route for challenges to abortion restrictions. Indeed, federal courts have routinely put holds on similar laws, which rely on traditional enforcement by state and local authorities.
The Supreme Court voted 8-1 in favor of allowing the clinics’ lawsuit against the ban to proceed, with only Justice Clarence Thomas voting against it.
But the court was sharply divided, 5-4, on the knotty issue of whom to target with a court order that ostensibly tries to block the law. The justices ruled that Texas licensing officials may be sued, but dismissed claims against state court judges, court clerks and the state attorney general.
Gorsuch wrote that abortion providers have to follow the same rules that apply to people asserting other constitutional rights. “The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms or any other right. The petitioners are not entitled to a special exemption,” Gorsuch wrote.
ROLE OF COURT
Chief Justice John Roberts and the three liberal justices dissented from that part of the decision in an opinion that said the purpose of the Texas law was “to nullify this court’s rulings” on abortion.
The same four justices were in dissent in September when the court declined to block the law once before.
“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” Roberts wrote. He quoted from an 1809 Supreme Court opinion that said attempts by state legislatures to annul judgments of the courts make a “mockery” of the Constitution.
“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,” he said.
Roberts cited “the ongoing chilling effect” of the Texas law and called on U.S. District Judge Robert Pitman, whose earlier order blocking the law was overturned by the appeals court, to “enter appropriate relief without delay.”
Sotomayor also chastised her colleagues for their part in the “catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas.” She said the court’s decision closed off the most direct route to challenging the law and would “clear the way” for other 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.”
“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.”
Amy Hagstrom Miller, who as president and chief executive of Whole Woman’s Health and Whole Woman’s Health Alliance is the lead plaintiff in the case, said that while Friday’s outcome offered “hope,” the legal process has been “excruciating” for patients and staffs alike.
“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,” she said in a statement, imploring the lower-court judge to act expediently. “We hope this law is blocked quickly so we can resume the full scope of abortion care we are trained to provide.”
The Texas law has imposed the most restrictive abortion curbs in the nation since the Supreme Court first declared a woman’s right to an abortion in the Roe v. Wade decision.
In the Texas law’s first month, a study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% compared with September 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Evaluation Project.
Some residents who left the state seeking abortions have had to travel well beyond neighboring states, where clinics cannot keep up with the increase in patients from Texas, according to a study by the Guttmacher Institute.
After the court’s September vote, the Justice Department filed its own lawsuit over the Texas law. The justices Friday dismissed that suit, which raised a separate set of thorny legal issues.
Anthony Coley, a spokesman for the department, said in a statement that the administration got involved in the case because Texas’ law “was specifically designed to deprive Americans of their constitutional rights while evading judicial review.”
The Justice Department, Coley said, “will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”
Nancy Northup, who heads the Center for Reproductive Rights, chastised the court for having “abandoned its duty to ensure that states do not defy its decisions.”
“For 100 days now,” Northup said in a statement, “this six-week ban has been in effect, and today’s ruling means there is no end in sight.”
Northup added, “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.”