Justices won’t stop Texas abortion ban, but clinics can sue
WASHINGTON » The 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 decision, little more than a week after the court signaled it would roll back abortion rights and possibly overturn its landmark Roe v. Wade decision, was greeted with dismay by abortion-rights supporters but praise 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, a result that both sides said probably will prevent federal courts from effectively blocking the law.
Texas licensing officials may be sued, but not state court judges, court clerks or state Attorney General Ken Paxton, the court ruled. That seems to leave 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 are 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.
The court acted more than a month after hearing arguments over the law, which makes no exceptions for rape or incest.
The law has been in place since Sept. 1. The Supreme Court’s Roe v. Wade ruling that legalized abortion nationwide has stood since 1973.
Justice Neil Gorsuch, who has consistently voted against abortion rights, did not mention Roe in his main opinion for the court Friday. Gorsuch is one of the Trump appointees, along with Justices Brett Kavanaugh and Amy Coney Barrett.
Abortion providers will now attempt to run the same legal gantlet that has previously frustrated them. The federal judge who already has once blocked the
law, known as S.B. 8, almost certainly will be asked to do so again. Then his decision would be reviewed by the 5th U.S. Circuit Court of Appeals, which has twice voted to allow enforcement of the abortion ban.
It all could return to the justices, and there have not been five votes on the ninemember 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 first went into effect. It failed to do so then, and
it fails again today,” Justice Sonia Sotomayor wrote in a separate opinion Friday.
Another case
The court’s conservative majority also seems likely to roll back abortion rights in a 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 nation.
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.
The legal 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 residents, rather than 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. Federal courts routinely put a hold on similar laws, which rely on traditional enforcement by state and local authorities.
The Supreme Court voted Friday 8 to 1 in favor of allowing the clinics’ lawsuit against the ban to proceed, with only Justice Clarence Thomas voting the other way. 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.
No ‘special exception
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.
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.