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Abortion providers get Supreme Court backing to fight Texas ban

The state’s near-total ban will remain in place as their case proceeds

The Supreme Court authorized Texas abortion providers on Friday to proceed in their challenge of the state’s near-total ban on abortions, a rule that will remain in place while their case proceeds. 

Issuing their decision just over a month after oral arguments, the justices still managed a split on somewhat idealogical lines. Justice Neil Gorsuch wrote the lead opinion, joined by Justices Samuel Alito, Brett Kavanaugh and Amy Coney Barrett. The liberal wing of the court joined an opinion concurring in judgment but dissenting in part by Chief Justice John Roberts. Justice Clarence Thomas issued his own partial dissent.

The narrow ruling allows the abortion providers to continue their suit against defendants with authority over medical licenses but rejects their effort against judges and clerks of the state court systems.

“Eight justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners,” Gorsuch wrote.

The opinion finds that these defendants fall within the scope of Ex parte Young because they are officials who must take action against anyone of violates Texas’ Health and Safety Code. 

“It appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8.” 

Gorsuch argued against the abortion providers’ suit against state judges and clerks calling it “troubling” because it offers no limiting principles. 

“If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law, what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws,” the Trump appointee wrote. 

The Roberts opinion meanwhile urged the trial judge to act on the case quickly.

“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay,” Roberts wrote.

Roberts said the purpose of Texas’ law is to overturn the court’s rulings. 

“The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” the Bush appointee wrote. “It is, however, a basic principle that the Constitution is the ‘fundamental and paramount law of the nation,’ and ‘it is emphatically the province and duty of the judicial department to say what the law is.’”

Thomas wrote that he would have reversed the district court’s ruling entirely and dismissed the case for lack of subject-matter jurisdiction. 

“There is no freestanding constitutional right to pre-enforcement review in federal court,” the Bush appointee wrote. 

Thomas said the abortion providers could have sought a “negative injunction” which permits a challenger to take up a defense that would otherwise be available in the state’s enforcement proceedings. 

Sotomayor attacked the court’s decision to allow the ban to remain in effect.

“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” the Obama appointee wrote. “It failed to do so then, and it fails again today.” 

Sotomayor warned against a “dangerous departure” from the court’s precedents that allow federal courts to issue relief when a state enforces a law that violates constitutional rights. 

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“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,” Sotomayor wrote. “The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

Roberts hit on the same point in his opinion, saying that if state legislatures are able to destroy constitutional rights, “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,” Roberts wrote. 

Gorsuch took issue with Sotomayor’s claims that the court is not defending the constitution. 

“That rhetoric bears no relation to reality,” Gorsuch wrote. 

While the court handed abortion providers an opportunity to continue their challenge to the ban, it did not stop enforcement of the law, which still remains in effect. The court also ruled in the Department of Justice’s case — which sought to stop enforcement of the ban — dismissing their case. Justice Sonia Sotomayor was the lone dissenter from this opinion.

The case by the abortion providers was consolidated for arguments with a separate challenge by the government after the Fifth Circuit blocked an injunction on the law in a 2-1 ruling. Though the court agreed to hear arguments in both challenges, it refused to reinstate the injunction. In doing so, it specified that arguments would focus not on the constitutionality of the law but rather issues brought about by the unique enforcement mechanism that has allowed it to evade judicial review. 

Codified as Senate Bill 8, the Texas law bans all abortions after the detection of fetal cardiac activity and before most women know they are pregnant. Significantly for the litigation here, SB 8 gives private citizens authority to sue anyone who aids in an illegal abortion instead of government officials who would normally enforce such laws.

This has complicated pre-enforcement challenges to the law — something that has thwarted similar laws that look to nullify precedent under Roe v. Wade and the 1992 case Planned Parenthood v. Casey, which implemented what is known as a viability analysis focused on laws that ban abortions before the point when a fetus can survive outside the womb, usually at about 23 or 24 weeks in utero.

Fetal cardiac activity occurs approximately six weeks after a woman’s last menstrual period and two weeks after a woman’s first missed period. SB 8 contains no exceptions for cases of rape or incest. 

This unique enforcement mechanism was a key sticking point during oral arguments before the court as it would create a precedent that allowed other states to eviscerate constitutional rights of their choosing and essentially disempower courts to challenge laws on their merits.

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Activists at a pro-choice march at the Texas State Capitol.


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