At a time when abortion rights across the country are in jeopardy, the U.S. Supreme Court’s ruling on Friday allowing abortion providers to challenge a Texas law banning most abortions after six weeks may seem like a promising development for those who still believe that women should have autonomy over their bodies.
Yet for those hoping the court will overturn its September 1 ruling allowing the law to take effect, the judges’ split decision brings little comfort. Not only did the court allow the law to stand, but it barely opened a window for challenges, which are complicated because it has not been clear who plaintiffs will sue under a new law that allows citizens to sue other citizens for anything that is collected. offences.
In an 8-1 decision, the High Court, with Justice Clarence Thomas dissenting, allowed abortion providers to challenge Texas law by suing state licensing officials who are authorized to take disciplinary action against providers who violate the law but refused in a 5-4 vote to let abortion providers sue other state officials such as judges, clerks, and the Texas attorney general.
The result is, at best, a Pyrrhic victory for abortion rights, which still leaves open the very legitimate possibility that other states will try to pass similar legislation allowing anyone to sue. in state court against anyone who performs an abortion or helps to make one possible.
Even authorizing lawsuits against the state medical, pharmaceutical, and nursing boards and the head of the Texas Health and Human Services Commission, has a glaring escape route. It provides a blueprint for other states to violate abortion rights by simply changing their laws to ensure licensing officials have absolutely no enforcement capacity and therefore will not face prosecution. .
“The dispute centers on whether states can overrule federal constitutional rights using schemes like this,” Judge Sonia Sotomayor wrote. “The court indicates that they may, as long as they draft their laws, more completely exclude any enforcement by state officials, including licensing officials.”
The court’s decision will also have no impact on what Chief Justice John Roberts called “the continuing chilling effect of state law.” Senate Bill 8, which took effect in September, prompted many doctors to stop performing abortions, forced clinics across the state to stop performing all but early abortions, and leads women who can afford it to travel out of state to access their abortion rights. Researchers at UT Austin reported earlier this fall that the number of documented abortions fell by half in September compared to a year ago. Women who cannot afford to travel will always remain helpless, with some inevitably seeking methods to terminate their pregnancies without medical supervision. Many of those who are already marginalized – people of color, people in rural communities, immigrants and people simply struggling to make ends meet – will have no choice but to carry their pregnancies to term.
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The court’s decision is all the more alarming because a separate Mississippi case attempting to ban abortions after 15 weeks could overturn what was once considered established abortion rights law in that country: access to the procedure until a fetus is viable. If Texas abortion providers were convinced that Roe v. Wade’s landmark 1973 abortion rights would be upheld, so there would be no need to stop performing the procedure. But this Supreme Court seems poised to throw precedent out the window and roll back abortion rights, potentially leaving providers with mountains of lawsuits.
For now, the abortion providers’ best hope is a separate challenge to the law in Texas courts that will become even more critical after the Supreme Court’s decision. On Thursday, state District Judge David Peeples ruled parts of the enforcement machinery unconstitutional, but refrained from blocking it altogether. That decision has been appealed by the advocacy group Texas Right to Life, and the conservative state Supreme Court may very well overturn Peeples’ decision.
In a 1913 decision, Judge Oliver Wendell Holmes wrote, “I don’t think the United States would come to an end if we lost our power to declare an act of Congress void. I think the Union would be in jeopardy if we couldn’t make that statement as to the laws of the different states.
Roberts’ dissent on Friday underscored Holmes’ prescient concern that by allowing Texas to bar a constitutional right within its borders, “the constitution itself becomes a solemn mockery.”
Even abortion-rights opponents who applaud Texas’ provocative law and Supreme Court authorization should be wary of the far-reaching effects: We’re looking at a bleak future where every other fundamental right recognized by the Supreme Court may fall. under attack, and the federal courts may well be powerless to stop him.
