Pro-choice demonstrators protest outside of the US Supreme Court in Washington, DC on November 1, 2021.
Yasin Ozturk | Anadolu Agency | Getty Images
The Supreme Court on Friday ruled that a federal lawsuit by abortion providers challenging the constitutionality of Texas’ tough new abortion ban can proceed against some named defendants before the law is enforced against anyone.
However, the Supreme Court allowed the Texas law to remain in effect during that challenge, which will proceed in a lower federal court. The Texas Heartbeat Act effectively bans most abortions in the state.
The ruling does not address whether a majority of the Supreme Court believes the ban is unconstitutional. But the justices could eventually answer that question once the lawsuit, titled Whole Woman’s Health vs. Jackson, winds its way through lower courts.
Also Friday, the high court said that a second lawsuit challenging the law, one filed by the Biden administration, could not proceed.
The Texas law, also known as S.B. 8, took effect in September.
It empowers private citizens to sue, for at least $10,000, anyone who “aids or abets” an abortion after the detection of a fetal heartbeat, usually around six weeks or so into gestation. That is 18 weeks less than the standard set by Roe v. Wade, the 1973 Supreme Court ruling that enshrined a woman’s constitutional right to abortion.
But the law has not been enforced against any abortion provider yet. Abortion providers nonetheless sued, seeking to have the law ruled unconstitutional, and barred from being used in the meantime.
The court in its 8-1 ruling allowing the suit to proceed noted that “other viable avenues to contest the law’s compliance with the Federal Constitution also may be possible and the Court does not prejudge the possibility.”
The state judge, in his ruling that was immediately appealed by an anti-abortion group, said the law gave legal standing to a people not injured by a pregnancy terminated and was an “unlawful delegation of enforcement power to a private person.”
The Supreme Court’s ruling Friday said the abortion providers who have sued cannot sue a state court clerk, a Texas judge or Texas Attorney General Ken Paxton.
But they can proceed with the suit against other named defendants, who include executive directors of three state health boards –Medical, Nursing and Pharmacy — as well as Allison Benz, the executive commissioner of the Texas Health and Human Services Commission. That is because those boards and officials may take enforcement actions against abortion providers if the providers violate Texas’ Health and Safety Code, which includes S.B. 8, the Supreme Court ruling noted.
The decision came more than a week after the high court heard oral arguments in a separate case, Dobbs v. Jackson Women’s Health, in which the state of Mississippi asked the justices to overturn decades-old precedents supporting a constitutional right to abortion.
During those arguments, the court’s 6-3 conservative majority appeared ready to weaken that precedent over the strenuous objections of the three liberal justices.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” liberal Justice Sonia Sotomayor wondered aloud. “I don’t see how it is possible.”
The two cases challenging the Texas law, one from the Biden administration and another from a group of abortion providers and advocates, were effectively combined and placed on a fast-track schedule for briefing and argument.
S.B. 8 effectively bans most abortions in the state by barring the procedure after the detection of a fetal heartbeat, because many women are not yet aware of their pregnancies by that point.
The law includes an exemption for medical emergencies, but none for pregnancies resulting from rape or incest.
S.B. 8 explicitly excludes state officials from enforcing the law, which was designed to avoid having those officials named in legal challenges to the ban before it was actually enforced.
Opponents argued that that structure was crafted with the intent to thwart judicial review. Some of the Supreme Court’s conservatives appeared to agree during oral arguments on Nov. 1.
“There’s a loophole that’s been exploited here,” Justice Brett Kavanaugh said.
The abortion law, the most restrictive in the nation, became a flashpoint for Supreme Court controversy even before the latest term officially kicked off when a slim majority declined to block the ban from taking effect in September.
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