Supreme Court keeps Texas abortion law in place but allows providers' legal challenge to proceed

Washington — The Supreme Court on Friday said a legal challenge brought by abortion providers in Texas against a state law banning most abortions after about six weeks of pregnancy can move forward, but left the law in effect while proceedings continue.

The court ruled 8-1 in favor of the providers in allowing them to pursue a challenge against some of the defendants named in their suit, namely "executive licensing officials" who take enforcement actions against the clinics if they violate Texas' abortion law, known as S.B. 8. Only Justice Clarence Thomas dissented in allowing the clinics' suit against the licensing officials to proceed. The abortion providers' earlier efforts to block enforcement of the law had been unsuccessful because the ban's unique design insulated it from federal court review. 

Justice Neil Gorsuch delivered the opinion for the court, noting that "in this preliminary posture, the ultimate merits question — whether S. B. 8 is consistent with the federal Constitution — is not before the court. Nor is the wisdom of S. B. 8 as a matter of public policy."

But on the issue of whether the providers can sue licensing officials, Gorsuch wrote "sovereign immunity does not bar the petitioners' suit against these named defendants at the motion to dismiss stage."

The high court sent the case back to the lower courts for further proceedings. In a separate unsigned opinion, the Supreme Court dismissed a challenge to the Texas law brought by the Justice Department. 

Since the Texas law went into effect at the beginning of September, abortions have effectively been outlawed in Texas, as the measure prohibits abortions after embryonic cardiac activity is detected, usually at about six weeks of pregnancy and often before a woman knows she is pregnant. Some clinics in the state stopped providing abortions entirely, while others directed patients to neighboring states, where procedures are still being performed.

The central issue in the case, known as Whole Woman's Health v. Jackson, was not whether the Texas measure comports with the Supreme Court's past decisions on abortion, which prohibit states from outlawing abortions before fetal viability, generally between 22 and 24 weeks of pregnancy. Instead, the dispute before the high court focused on the law's novel enforcement mechanism and who could sue over the ban in federal court.

Texas officials crafted the law to allow private citizens, rather than state officials, to enforce it by filing lawsuits in state court against anyone who performs an abortion or "aids or abets" them. The ban's design complicated efforts by the clinics to stop it from taking effect, as it was unclear who they should file suit against.

Abortion providers targeted in their challenge a number of state officials who would be play different roles in enforcing the abortion law: a state-court judge, a state-court clerk, a private individual who pledged to sue alleged violators of the Texas law, Texas Attorney General Ken Paxton, and three state officials who have authority over medical licensees.

The court unanimously found the state-court judge should be dismissed from the suit, while a majority reached the same conclusion for state-court clerks and Paxton. But eight members of the court said the case could proceed against the three executive licensing officials who would take enforcement action against the clinics if they violate the Texas law.

In a separate opinion joined by Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, Chief Justice John Roberts lambasted Texas for passing a law that is contrary to the Supreme Court's abortion decisions and said "the clear purpose and actual effect of S. B. 8 has been to nullify this court's rulings."

Citing a high court decision from 1809, Roberts warned that, "'[i]f 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.' 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."

Justice Sonia Sotomayor, joined by Breyer and Kagan, chastised her colleagues for allowing the Texas law to remain in place, saying it "should have put an end to this madness months ago, before S. B. 8 first went into effect." Sotomayor also warned that by foreclosing lawsuits against state-court officials and the state attorney general, the court is inviting 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," she wrote in a separate opinion.

The decision from the Supreme Court comes more than a month after the justices heard oral arguments in the providers' case and the second challenge from the Justice Department. The high court considered the disputes with unusual speed, compressing a process that typically spans months.

The Supreme Court is also considering a separate challenge to a Mississippi law that bans abortions after 15 weeks of pregnancy. In that case, Mississippi officials are asking the court to overturn Roe v. Wade, the 1973 decision that established a woman's right to an abortion, and Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe's central holding.

The justices heard arguments in the Mississippi dispute last week, and its conservative members seemed inclined to uphold the 15-week law, potentially paving the way for more states to place limits on abortions.

The Texas law, meanwhile, became enforceable September 1, but days before, abortion clinics filed an emergency request with the Supreme Court asking it to stop the measure from taking effect. In a 5-4 decision, the justices declined to do so, citing the novel procedural questions raised by the case. Still, the court said the providers raised "serious questions" about the constitutionality of the abortion ban.

Several days after the decision by the high court, the Justice Department filed its own lawsuit against Texas officials over the ban, arguing it was enacted in "open defiance" of the Constitution and the U.S. had the authority to sue the state in federal court.

A U.S. district judge in Austin temporarily halted enforcement of the ban in response to a request from the Biden administration. But roughly 48 hours later, a three-judge panel on the 5th U.S. Circuit Court of Appeals reinstated the law. 

The Justice Department then turned to the Supreme Court and asked it to intervene and hear their case. In late October, the high court said it would hear both the Biden administration and the abortion providers' cases.