Supreme Court allows abortion providers to sue over Texas law

The Supreme Court on Friday cleared the way for abortion providers to pursue a federal lawsuit challenging a restrictive Texas law that bans abortion after six weeks of pregnancy.

The ruling did not deal directly with the ban’s legality, and Texas’s law remains intact for now. Rather, the justices determined that federal courts have the power to review their legal challenge against some of the named defendants.

In a separate opinion, the justices dismissed a similar challenge brought by the Department of Justice.

In an 8-1 opinion by Justice Neil Gorsuch, the majority handed abortion providers a modest win whose practical impact was not immediately certain. Justice Clarence Thomas wrote separately that he would have dismissed the case. 

The ruling allows providers to pursue a constitutional challenge in lower federal courts against state licensing officials that, if successful, could prevent these officials from seeking to enforce violations of the abortion ban. 

But some legal experts said the ruling had given Texas a roadmap for blocking these lawsuits.

“If Texas were to revise the statute to make clear that the licensing officials play absolutely no role in implementing the law, then no one in Texas could be sued to enjoin it,” said Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, who called Texas’s abortion ban “blatantly unconstitutional.”

The majority’s ruling dismissed the abortion providers’ suits against Texas’s attorney general, as well as a number of state court judges and clerks and a private citizen.

Legal challenges to the Texas law have been ensnared in thorny questions related to the law’s unique legislative design, which critics have likened to a “bounty” system.

S.B. 8 authorizes citizens to file private lawsuits against those who perform, aid or abet an abortion after fetal cardiac activity is detected, typically around six weeks of pregnancy — before most women know they are pregnant. Successful suits under S.B. 8, which contains no exceptions for rape or incest, fetch at least $10,000.

Chief Justice John Roberts, in a separate opinion that was joined by the court’s three liberals, called Texas’s law unconstitutional under Roe v. Wade and other Supreme Court precedent and said the ban has “effectively chill[ed] the provision of abortions in Texas.”

Texas’s six-week ban is among hundreds of abortion restrictions that state legislatures have passed in recent years. Many such measures have the explicit goal of overturning Roe v. Wade, the landmark 1973 ruling that recognized a constitutional right to abortion before a fetus is viable, typically around 24 weeks of pregnancy.

Access to abortion has been sharply curtailed in Texas in the roughly three months since the six-week ban took effect.

“The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. … Indeed, if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery,” Roberts wrote, citing an 1809 decision.

“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.”

Roberts and the court’s liberal members were in agreement that abortion providers should be allowed to bring suit against state licensing officials. Contrary to the controlling opinion, though, they also would have allowed Texas’s attorney general and court clerks to be sued.

Justice Sonia Sotomayor wrote a separate opinion, joined by her fellow liberal Justices Stephen Breyer and Elena Kagan, that blasted Texas for operating “in open defiance of this Court’s precedents” and the court’s conservative members for not using Friday’s opinion to block Texas’s law.

“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,” she wrote, calling the move a “dangerous departure” from precedent authorizing the court to set aside the law. 

“Federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review,” she continued. “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

The dispute over S.B. 8 arose after a group of abortion providers, led by Whole Woman’s Health, brought a federal lawsuit this summer to block the law prior to its Sept. 1 effective date. The group identified Texas state and judicial officials as defendants, as well as a private person whom the abortion providers believed would try to enforce S.B. 8.

The Texas defendants asked the federal judge overseeing the dispute to dismiss the case, which he declined to do, prompting them to appeal. The U.S. Court of Appeals for the 5th Circuit, siding with the defendants, agreed to pause the district court proceedings and declined to temporarily block the six-week abortion ban in the interim.

Whole Woman’s Health then filed an emergency petition to the Supreme Court asking the justices to halt the Texas restriction. The court on Sept. 1 voted 5-4 to deny the emergency request, with Roberts joining the court’s three more liberal justices in dissent.

The majority, citing the “complex and novel” procedural questions raised by S.B. 8’s outsourcing of enforcement power to private citizens, said it was unclear whether the named defendants in the suit “can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”

A week later, the Justice Department sued the state of Texas in federal court, seeking to block the law. The U.S. district judge agreed to temporarily halt the law, but the 5th Circuit reinstated S.B. 8 while the case proceeded through the courts. 

The Supreme Court set oral arguments on an expedited schedule and held a hearing on both cases last month. 

In its separate opinion on Friday, the court dismissed the Justice Department’s suit.

Updated at 11:53 a.m.