Supreme Court rules abortion clinics can challenge Texas law

WASHINGTON — The Supreme Court ruled 8-1 Friday that abortion clinics can move forward with a challenge to Texas’s ban on most abortions, a move that puts state law in jeopardy although the judges allowed it to remain in force for the time being.

In a divided opinion, the court said the head of the state medical council and other licensing authorities could face prosecution before the law is applied to test its constitutionality, despite the efforts of the government. Texas to isolate the law from federal court review by giving enforcement power to the private sector. litigants.

Although the opinion allows abortion providers to pursue their challenges in a federal district court, a slim majority of judges said that a wider body of state officials, including the attorney general, could not. not be sued.

The court declined to issue a ruling in a related Texas law challenge, known as SB 8, brought by the Department of Justice, and denied the department’s emergency request to block the law immediately.

Providers’ victory may be short-lived as the High Court, in another pending case, extensively re-examines the merits 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.

Judge Neil Gorsuch wrote that his ruling did not say whether Texas law banning most abortions was consistent with the U.S. Constitution.


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Judge Neil Gorsuch, writing for the tribunal, made this point. “The ultimate substantive question – whether SB 8 complies with the Federal Constitution – is not before the court. The wisdom of SB 8 is also not a matter of public policy, ”he wrote. Friday’s opinion concerned the intricacies of federal court process, not the constitutionality of abortion rights.

The decision saw the judges split into several camps. Most of the court’s conservative justices argued that abortion clinics could only prosecute a very limited number of Texas officials, while Judge Clarence Thomas single-handedly said he would have dismissed the providers’ lawsuit altogether. .

Typically, abortion providers have challenged restrictions when they are enacted by suing state officials responsible for their enforcement. Texas has sought to isolate the abortion restriction by assigning enforcement authority to private civil litigants who could win prizes of at least $ 10,000 for successful prosecutions.

The providers therefore sued several types of officials who they believed would nonetheless be involved in the enforcement, including state court clerks who would register private prosecutions under SB 8.

If “federal judges could prohibit courts and state clerks from settling disputes between private parties under this state law, what would prevent federal judges from prohibiting courts and clerks from settling disputes between private parties? state to hear and register disputes between private parties under other state laws? Judge Gorsuch wrote.

Chief Justice John Roberts and the court’s three Liberal judges ruled that the challengers should have been allowed to prosecute a wider range of state officers, including Attorney General Ken Paxton.

The Chief Justice said that the purpose and effect of the Texas law “has been to overturn the decisions of this court,” adding: “The nature of the federal law violated does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Judge Sonia Sotomayor, writing on behalf of the three liberals in the court, criticized the majority for allowing Texas law to remain in effect for months “in open disregard of the precedents of this court.”

Judge Sonia Sotomayor criticized the majority for allowing Texas law to remain in force for months “in open disregard of the precedents of this Court.”


Erin Schaff / Associated press

“The Court should have ended this madness months ago, before SB 8 first came into effect,” she wrote, joined by Justices Stephen Breyer and Elena Kagan. “It wasn’t then, and it still fails today,” she wrote, simply allowing lower courts to continue rather than immediately banning abortion. “I hope that the district court will act quickly to obtain much needed help,” she added.

Justice Sotomayor wrote that the majority’s reasoning still left room for creative state lawmakers to deny a multitude of constitutional rights using Gorsuch’s opinion as a roadmap “to more completely deny any application by officials. government, including licensing officials ”.

Justice Gorsuch dismissed these concerns, writing that there were still other avenues to assert federal constitutional rights, including pre-application challenges that could be brought in state courts.

He noted that 14 of those lawsuits were filed against SB 8 in Texas state court and that abortion providers got a ruling on some of their claims on Thursday.

The Supreme Court ruling comes more than five weeks after hearing expedited oral arguments in two cases in which abortion providers and the Justice Department sued to block SB 8, also known as Texas Heartbeat Act.

The country’s strictest law prohibits abortions after about six weeks of pregnancy, much earlier than current Supreme Court case law allows. It prohibits doctors from knowingly performing an abortion if there is a “detectable fetal heartbeat,” which the law defines as including early cardiac activity in the embryo, and does not contain exceptions for rape or rape. incest.

When the law came into force on September 1, the Supreme Court, on a 5-4 vote, refused to block it at that time, with the court’s more conservative justices saying procedural complexities prevented them from d ‘to intervene. Weeks later, the court moved at unusual speed to consider the two legal challenges and held expedited oral arguments on November 1.

After clinics ran into the first roadblocks from the courts, the Justice Department intervened and filed a lawsuit against Texas, arguing that the state was engaged in an illegal scheme to deprive citizens of their facilities. constitutional rights.

The U.S. Fifth Court of Appeals ruled that neither the department nor the clinics had met the strict criteria for a court order blocking the application of SB 8.

Under current High Court case law, women have a constitutional right to terminate their pregnancy before fetal viability, considered to be somewhere around 24 weeks.

In the Mississippi case, the state is seeking a ban after 15 weeks and argues that the abortion rights framework dating from Roe v. Wade of 1973 is incorrect and should be dropped.

The court heard arguments in that litigation last week, with conservative judges strongly questioning the adequacy of constitutional protections for abortion rights.

Write to Brent Kendall at [email protected] and Jess Bravin at [email protected]

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