Supreme Court Allows Texas Abortion Law to Stand, But Says Abortion Providers Can Challenge It

The Supreme Court will once again allow Texas’ law that bans most abortions after about six weeks to stay in effect, it said Friday, but it will allow a group of abortion providers to challenge the law.

In a 5-4 decision, the justices said that while the providers’ lawsuit could move forward against some state licensing officials, they would not allow the providers to sue other defendants. In a second decision, the Court dismissed the U.S. Department of Justice’s challenge to the Texas law and rejected the government’s request to reinstate a federal district court order blocking the law.
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These decisions were both a disappointment and a hope for abortion rights activists. The third instance in which the Texas high court declined to stop the controversial abortion law has occurred since Sept. 1, when it was first implemented. The law will now continue to be in effect in Texas as the abortion providers’ case makes its way through the courts.

Justice Neil Gorsuch, who was appointed by President Donald Trump, wrote the majority opinion in the abortion providers’ case. Most of his conservative colleagues joined that opinion, but the justices’ opinions were split over details of the case.

Many justices wrote independent opinions. Conservative Justice Clarence Thomas dissented from the majority in part, writing that he would not have allowed the providers’ lawsuit to go forward at all. Chief Justice John Roberts filed his own opinion, too, joined by the high court’s three liberal justices, concurring in part and dissenting in part. Justice Sonia Sotomayor was joined by Stephen Breyer and Elena Kagan as liberal justices.

Supreme Court – Abortion Rights

The high court’s decision comes at a critical moment for abortion rights in the United States. A second abortion case was heard by the Supreme Court on December 1. Dobbs v. Jackson Women’s Health OrganizationThis presents the greatest challenge. Roe v. WadeThis case has established the 1973 constitutional right of abortion. Although Dobbs likely won’t be decided until the end of the Court’s term next June, the justices’ questions seemed to signal they are open to completely overturning Roe v. Wade.

Continue reading: Inside Mississippi’s Last Abortion Clinic—And the Biggest Fight for Abortion Rights in a Generation

Texas’ law is directly contrary RoeAccording to, states can’t ban abortions before fetal viability occurs, which happens around 24 weeks in pregnancy. In the Texas cases, the Supreme Court justices did not directly consider the constitutionality of the state’s law, known as Senate Bill 8 (SB 8). They weighed instead complicated procedural questions about the law’s enforcement mechanism, which had previously allowed it to avoid federal judicial review.

The law imposes the country’s most stringent abortion restrictions, prohibiting nearly all abortions after roughly six weeks, before many people know they are pregnant—with no exceptions for pregnancies resulting from rape or incest. SB 8 prohibits state officials from applying it, instead empowering private citizens to sue any person who gives an abortion or assists someone in getting one. Anyone who files a complaint under the law is entitled to at least $10,000

It has been difficult for anyone challenging the law to decide who to sue because of this vigilante enforcement system. But for now, the abortion providers’ suit against some licensing officials in Texas will be allowed to return to lower courts and proceed from there.

An unusual case

Oral arguments in the two cases were heard on Nov. 1. Many justices appeared more interested than ever in the provision of providers.lawsuit will be able to proceed than the Department of Justice’s questions. Amy Coney Barrett and Justice Brett Kavanaugh were particularly open to challengersArguments that go against the lawA novel structure shouldn’t be used to protect it from judicial oversight.

Even if the Texas justices agreed that Texas’ law cannot be challenged in the conventional way, legal experts warned that private citizen lawsuits can be used as a means to attack other civil rights, regardless of ideologies, such as gun ownership and same-sex marriage.

After the Justice Department filed an emergency appeal asking for the intervention of the highest court, the abortion providers and the Justice Department both made their cases through lower courts.

However, SB 8 is still in force for over three months and will continue to be so unless another court decides against it.

Texas is expected to keep abortions severely limited for the foreseeable future. Due to high risk and expensive lawsuits, most doctors are not allowed to do abortions which would be in contravention of state law. It effectively stopped most abortion services from the state. Many Texans have had to travel out of state in the past three months to obtain abortions. Others have been forced into continuing pregnancies that they didn’t want. Abortion clinics are struggling to keep staff on the job and to comply with the restrictions.

Continue reading: A small group of doctors who risked everything to provide abortions in Texas

Now that the abortion providers’ lawsuit challenging SB 8 will return to federal court, their case will focus directly on whether the law is unconstitutional, and the dispute could ultimately end up back at the Supreme Court.

In the meantime, other states are already following Texas’ lead. At least half of the states’ conservatives have indicated that they would like to adopt legislation similar to Texas’s. Florida, Ohio, Arkansas and other states are already doing so.

Advocates on both sides of the abortion debate are also preparing for the Supreme Court’s decision in the DobbsThis case concerns a Mississippi law which bans abortion after fifteen weeks. It would encourage other states, if the Court upholds this law, to review previous laws or seek new legislation prohibiting abortion in early pregnancy.


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