Supreme Court says challenge to Texas’ ban on abortion can proceed

Supreme Court says challenge to Texas’ ban on abortion can proceed, allows law to remain in effect for now

The court didn’t rule on the merits of the law, but rather on whether the abortion providers’ lawsuit can move forward.

WASHINGTON — The Supreme Court ruled Thursday that abortion providers in Texas can go ahead with their lawsuit challenging S.B. 8, the nation’s most restrictive abortion law.

But the court declined to block enforcement of the law while the court battles continue, so the law remains in effect.

The ruling was a blow to Texas, which had sought to make the law nearly impossible to challenge in federal court. The state argued that abortion providers could not contest the law in advance but had to wait until they were sued for violating it.

Thursday’s ruling was only a partial victory for abortion providers, however. The court ruled that the federal government cannot pursue a separate lawsuit filed by the Biden Justice Department that also challenged the law. It also narrowed the field of possible defendants that can be sued in any lawsuits that go forward.

The justices did not decide whether the Texas law violates the Constitution. That issue was not presented in the case, but the decision clears the way for the issue to be litigated in the state. Because the law clearly violates existing Supreme Court abortion precedents, the challenges are likely to prevail.

In a separate case argued Dec. 1, the court is considering whether to overturn Roe v. Wade, which could allow individual states to decide whether abortion will be legal. That case involves a challenge to a Mississippi law, now on hold, that would ban nearly all abortions after 15 weeks of pregnancy.

The Texas law bans abortion after doctors can detect a fetal heartbeat, about six weeks into a pregnancy. But because past Supreme Court rulings have said states cannot ban abortion before the age of fetal viability, around 24 weeks, Texas officials could not enforce the ban themselves.

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The Texas law instead delegates enforcement to any person, anywhere, who can sue any doctor performing an abortion or anyone who aids in the procedure. Those suing can collect at least $10,000, potentially subjecting abortion providers to the prospect of repeated and ruinous lawsuits.

Texas argued that the law’s opponents had no legal authority to sue the state, because the S.B. 8 does not give state officials any role in enforcing the restriction.

“Federal courts don’t enjoin laws, they enjoin officials who enforce the laws,” the state’s solicitor general said.

But the law’s challengers, abortion providers in the state, sought to sue Texas judges and court clerks, describing them as “unquestionably connected to the enforcement of this new law; without them, the civil suits targeting the right to abortion could not be litigated, or even commenced.”

The Supreme Court took up the Texas cases after twice refusing to block enforcement of the law while the two challenges worked their way through the lower courts. As a result, the number of abortions in the state dropped dramatically. Some clinics stopped providing abortions services, forcing women seeking the procedure to travel outside the state.

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