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Originally published by The 19th
The U.S. Supreme Court will allow a legal challenge to Texas’ six-week abortion law to continue — potentially opening the door for lower courts to once again halt enforcement of the law, but also leaving open an avenue for future abortion restrictions and limiting the ruling’s impact.
The court did not block the law itself but rather sent the case back to a federal court in Austin. That court, U.S. District Court for the Western District of Texas, has already once issued an injunction blocking the law, though that decision was quickly overturned by a U.S. appeals court.
Before the ruling, many expected that the district court would promptly issue a similar injunction while legal proceedings continue, though it is not clear just how quickly the court will act and whether such an injunction will be ultimately overturned or limited in scope.
And until such an injunction is issued, the vast majority of abortions remain inaccessible in Texas.
Only one of two major challenges to the law will go forward, a case known as Whole Woman’s Health v. Jackson. That case was brought forth by a group of Texas abortion providers, who are suing the state’s judicial apparatus, which plays a major role in enforcing the law.
Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health, said in a statement to The 19th that the ruling gave the clinic hope for an end to the abortion ban in Texas, which has been in place for 101 days and caused the clinic to turn away pregnant people who had only just learned of their pregnancies. Without an injunction, the clinic cannot resume full abortion services.
“The legal back and forth has been excruciating for our patients and gut-wrenching for our staff,” she said. “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. Our fight against this law is not over.”
Eight members of the court — all but conservative Justice Clarence Thomas — agreed that abortion providers could sue. But they split in half over who, exactly, could be sued, a potentially consequential part of the ruling.
The court opinion, written by Justice Neil Gorsuch and signed in full by Justices Brett Kavanaugh, Samuel Alito and Amy Coney Barrett — all conservatives — argued that only some state licensing officials could be sued.
Chief Justice John Roberts, along with liberal Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan, dissented in part, arguing that more abortion providers should have the right to sue a wider swath of state officials, including court clerks.
It’s not immediately clear what impact the court’s limited ruling will have.
“I think the distinction is a really big deal,” said Steve Vladeck, a professor at the University of Texas School of Law and expert in federal courts. “It’s not clear that relief against these state licensing officials will actually allow providers to resume providing abortions, which is why it was so important to also be able to sue state-court clerks — to prevent these cases from being filed.”
In a blistering dissent that raised constitutional concerns, Sotomayor argued that the court’s decision creates a template for states to invalidate any federal law of their choosing. The narrow decision about who can be sued invites states to craft legislation modeled after Texas’ abortion ban but slightly fine-tuned so that the laws cannot be challenged in court.
“While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general,” she wrote. “By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”
The court dismissed the law’s other major challenge, a lawsuit initiated by the federal Department of Justice. That case, United States of America v. Texas, raised more complex constitutional questions about the sovereignty of the federal government.
Part of the case stemmed from Senate Bill 8’s distinctive legal structure that had thus far insulated it from legal scrutiny. A six-week ban on abortion is generally seen as inconsistent with Roe v. Wade, the 1973 court case that guaranteed the right to an abortion up until a fetus can live outside the womb. But instead of criminalizing abortions after six weeks of pregnancy, SB 8 deputized private citizens to sue anyone who “aided or abetted” people seeking abortion after that mark. A successful plaintiff would win at least $10,000 in civil court and have legal fees reimbursed.
This method of enforcement, the state argued, meant that all lawsuits targeting Texas or Texas officials were addressing the wrong defendants. The state solicitor general made that argument both in the case against Whole Woman’s Health and in its arguments against the Justice Department.
The majority opinion, written by Gorsuch, never mentions Roe v. Wade or weighs in substantively on abortion rights. The 1973 case is mentioned in only two other opinions — one by Chief Justice John Roberts, and another by Justice Sonia Sotomayor — that concur with part of the court’s opinion but dissent from other parts.
For the past three months, no clinic in Texas has performed abortions past six weeks of pregnancy — except for a two-day window when a lower court temporarily blocked the law — and many clinics halted abortion services altogether.
The number of abortions performed in Texas has plummeted since the six-week ban took effect. About 2,000 people got an abortion in the state in September, less than half the number performed the month prior. Experts had said they anticipated the number to fall further the longer the law stayed in effect. More up-to-date data isn’t yet available.
Simultaneously, clinics in neighboring states, including Oklahoma, New Mexico, Louisiana and Kansas, have reported a tremendous upswell in Texas-based patients coming for abortions. Wait times at those clinics have grown longer.
Still, the ruling’s impact is likely temporary. On December 1, the nine justices heard a separate abortion rights case out of Mississippi, examining a law that bans abortions after 15 weeks of pregnancy. Unlike the Texas law, that ban has never taken effect.
The state of Mississippi has argued that, in upholding the law, the court should reverse the Roe v. Wade protection established almost 50 years ago. A decision is not expected until summer, but a majority of the justices appeared open to a ruling upholding Mississippi’s law and possibly overturning Roe v. Wade entirely.
Depending on the nuances of such a decision, a six-week abortion ban like Texas’ could have a far better chance of surviving legal challenges. If Roe v. Wade is entirely overturned, governments in more than 20 states — including Texas — have indicated they intend to ban abortion altogether.
And Friday’s ruling paints a clear picture of a court divided over abortion rights and ready to substantially undermine Roe v. Wade’s protections, argued Melissa Murray, a professor at New York University and expert in reproductive law.
“The biggest thing we learned from this opinion is that the court is totally fractured on the question of abortion — with the hardcore conservative justices on the same page, the chief in the middle, and the three liberal justices trying to hold a line that is going away,” Murray said.
On Friday evening, President Joe Biden said he was “very concerned” that the court did not block SB8.
“While it is encouraging that the Court ruled that part of the providers’ lawsuit may continue, this ruling reinforces that there is so much more work to be done—in Texas, in Mississippi, and in many states around the country where women’s rights are currently under attack,” he said in a statement.
Biden joined calls to and from within Congress to pass the Women’s Health Protection Act, one of the pieces of legislation that would eliminate further barriers to accessing an abortion. Those include mandates that require pregnant people to wait a day or more after an initial appointment and ultrasound before they can access care, or laws that require doctors to provide counseling that is intended to discourage the procedure.
Sen. Patty Murray, a Washington Democrat who has cosponsored the Women’s Health Protection Act, said the legislation is particularly important because of the message the court’s ruling sends about the future of Roe v. Wade. Still, without bipartisan support in an evenly split Congress, the bill is unlikely to advance.
“It means that despite the fact that this law is in clear violation of Roe and 50 years of precedent, despite the fact that it deprives patients in Texas of their constitutional right to abortion — it is still in effect,” Murray said in a statement. “A person’s ability to get constitutionally protected health care should not be turned off and on like a faucet.”
