Supreme Court Rules Abortion Clinics Can Challenge Texas Law

Eight judges agreed that the head of the state medical board and other licensing authorities could be sued before the law is applied to prove its constitutionality, despite Texas efforts to isolate the law from federal court review. assigning enforcement power to private litigants who can earn money. awards for successful costumes.

But the conservative majority said other state officials, including the Texas attorney general and court clerks, guardians of the private litigation that enforces the ban, cannot be sued.

Taken together, the court’s decisions are something of a setback for Texas, but potentially leave room for the state, or other states, to try to pass new laws that seek to undermine abortion rights or other types of constitutional protections. Abortion providers, meanwhile, said the decision doesn’t necessarily leave them enough room to win a ruling in federal district court that would effectively block the state’s ban, which has been in effect for more than three months.

The Supreme Court separately refused to rule on a challenge related to Texas law, known as SB 8, filed by the Department of Justice, and denied the department’s emergency request to block the law immediately.

The law is the toughest in the country, prohibiting abortions after about six weeks of pregnancy, much earlier than current Supreme Court precedent allows. It prohibits physicians from knowingly performing an abortion if there is a “detectable fetal heartbeat,” which the law defines to include early cardiac activity in the embryo, and contains no exceptions for rape or incest.

The impact of Friday’s ruling on access to abortion could be limited because the higher court, in another pending case, is extensively reviewing the adequacy of constitutional protections for abortion rights. In that Mississippi litigation, judges are weighing whether to restrict or withdraw the right to terminate an unwanted pregnancy that the court recognized in the 1973 case, Roe v. Wade.

“I think all eyes are on the Supreme Court decision in the Mississippi case,” said Julia Kaye, an attorney for the Reproductive Freedom Project of the American Civil Liberties Union.

John Seago, legislative director for Texas Right to Life and a supporter of SB 8, described the superior court’s decision as a partial victory.

“It is going to be very difficult for the district court to grant a comprehensive court order. Now that the case only deals with state agencies, a court order would be applied to them, ”Seago said. “We are very optimistic that the law will continue to apply until the future, when perhaps the case will go back to the Supreme Court.”

Those on the other side did not disagree.

“It is astonishing that the Supreme Court has essentially said that the federal courts cannot stop this bounty hunter scheme enacted to blatantly deny Texans their constitutional right to abortion,” said Nancy Northup, president of the Center for Reproductive Rights, an advocacy group. representing providers. . “This six-week ban has been in effect for 100 days, and today’s decision means no end in sight.”

Friday’s decision saw the judges divided over several camps.

Conservatives, led by Judge Neil Gorsuch, said that regardless of the nature of the Texas ban, also known as the Texas Heartbeat Law, there were deep legal problems in allowing abortion challengers to sue a woman. large number of state government actors.

He and Justices Samuel Alito, Brett Kavanaugh and Amy Coney Barrett said that only a small group of officials could be sued. Judge Clarence Thomas said he would have ruled out the providers’ claims entirely.

Abortion providers have generally challenged restrictions when they enacted them by suing state officials charged with enforcing them. In an attempt to neutralize this tactic, Texas assigned enforcement authority to private civil litigants, who can win awards of at least $ 10,000 if they prevail in court.

Therefore, the providers sued various types of officials they claimed would be involved in law enforcement, including state court clerks who would file private lawsuits under SB 8.

But Judge Gorsuch said that if “federal judges could prohibit state courts and clerks from handling disputes between private parties under this state law, what would prevent federal judges from prohibiting state courts and clerks from hearing and filing disputes between private parties under other state laws? ”

Chief Justice John Roberts and the court’s three liberal justices said the court made a grave mistake by not allowing such clerks and other officials to be sued, and warned that the limited ruling could inflict long-term damage on the paper. institutional of the court and the protection of constitutional rights. .

“Texas has employed a series of stratagems designed to protect its unconstitutional law from judicial review,” wrote the Chief Justice. If state legislatures can employ such tactics to eviscerate federal rights, “the Constitution itself becomes a solemn mockery,” he wrote, citing a 1809 ruling.

“The nature of the infringed federal law does not matter; it is the role of the Supreme Court in our constitutional system that is at stake ”, he added.

Judge Sonia Sotomayor, writing for the court’s three liberals, criticized the majority for allowing Texas law to stand for months “in open defiance of the precedents of this Court.”

“The Court should have put an end to this madness months ago, before SB 8 came into effect for the first time,” he wrote, along with Justices Stephen Breyer and Elena Kagan. She wrote that the majority’s reasoning still left room for creative state legislators to deny a number of constitutional rights using Gorsuch’s opinion as a roadmap “to more completely deny all compliance by state officials, including civil servants. of licenses “.

Judge Gorsuch dismissed such concerns, writing that there were other avenues to enforce federal constitutional rights, including pre-execution challenges that could be filed in state courts. He noted that on Thursday, a state judge ruled that parts of the law enforcement structure were unconstitutional and should not be applied in Texas courts.

The Supreme Court ruling comes more than five weeks after it heard expedited oral arguments in a couple of cases in which abortion providers and the Justice Department filed a lawsuit to block SB 8.

When the law took effect on Sept. 1, the Supreme Court, with a 5-4 vote, refused to block it at the time, and the court’s more conservative justices said there were procedural complexities that prevented them from intervening. Weeks later, the court moved with unusual speed to consider the two legal challenges and held fast-track oral arguments on November 1.

After the clinics ran into obstacles in court, the Justice Department stepped in and filed a lawsuit against Texas, arguing that the state was involved in an illegal scheme to deny citizens their constitutional rights.

The department said Friday that it “will continue our efforts in the lower courts to protect women’s rights and uphold the Constitution.”

Since the law went into effect, the number of abortions performed at Texas clinics has decreased and women have traveled across state lines to providers who can perform procedures later in pregnancy.

State clinics say the law has created an ethical dilemma for them by turning away patients, some of whom are unable to travel elsewhere. They also warn of the domino effect of patients traveling out of state, leading to higher demand at clinics in other states and longer waits for the procedure.

Under current supreme court precedent, women have the constitutional right to terminate their pregnancies before fetal viability, which is considered to be around 24 weeks.

In the Mississippi case, the state seeks to impose a ban after 15 weeks and argues that the abortion right framework dating back to the Roe v. Wade from 1973 is wrong and should be dropped.

The court heard arguments in that litigation last week, and conservative judges dramatically questioned the adequacy of constitutional protections for abortion rights.

—Jennifer Calfas contributed to this article.

Write to Brent Kendall at brent.kendall@wsj.com and Jess Bravin at jess.bravin+1@wsj.com