Supreme Court Allows Texas Abortion Lawsuit to Proceed, Declines to Halt Enforcement

The Supreme Court on Friday ruled that abortion providers can proceed with their challenge to a Texas ban on abortions performed after six weeks of pregnancy. But with that narrow victory, the court still left the controversial law on the books and declined to halt enforcement as the case moves forward.

In the majority opinion for Whole Woman's Health v. Jackson, abortion clinics can keep up their challenge in lower federal courts, though it significantly limits who can be listed as a defendant in the case. In an 8-1 vote, the justices allowed state licensing officials to still be sued since they have the authority to enforce the law. Justice Clarence Thomas was the lone dissenter.

“The Court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others,” Justice Neil Gorsuch wrote in the majority opinion.

But in a 5-4 vote, the court also ruled that State District Court Judge Austin Jackson, Texas Attorney General Ken Paxton, a state court clerk and a private individual should be dismissed from the lawsuit because of “sovereign immunity,” greatly reducing the scope of the complaint. Chief Justice John Roberts and the court’s three liberal justices dissented.

Thomas went much further than the other conservatives on the court, saying he would have completely dismissed the abortion providers’ case.

“I would instruct the District Court to dismiss this case against all respondents, including the four licensing officials, because petitioners may not avail themselves of the exception to sovereign immunity,” Thomas wrote in his own opinion.

In a statement following the ruling, Whole Woman’s Health said the Supreme Court ended “two of the most promising pathways to blocking” the six-week ban and doesn’t “prevent bounty-hunter lawsuits.” That leaves abortion clinics in Texas with the reality that they might not be able to resume operations, even if they win in court in some capacities.

As the challenge continues and goes back down to the U.S. District Court for the Western District of Texas, the Supreme Court allowed the six-week ban to remain in place. The case will again likely go before Judge Robert Pitman, who previously ordered a preliminary injunction temporarily halting enforcement of S.B. 8.

But even as the court gave a narrow victory to abortion providers on their challenge, the court separately dismissed the Justice Department’s lawsuit, which names Texas as a defendant. The unsigned order said the case was “improvidently granted,” which means it shouldn’t have been accepted by the high court. Justice Sonia Sotomayor dissented.

The Texas law, known as S.B. 8, can’t be enforced by state government officials and instead gives authority to most private citizens by allowing them to sue anyone who provides or assists someone seeking an abortion after six weeks. The law was intentionally crafted in such a way to make it difficult to challenge in federal court.

S.B. 8, one of the strictest bans in the country, has received a groundswell of attention from both sides of the issue surrounding abortion rights. The law makes no exceptions for rape and incest, and – because many women don’t know they’re pregnant by six weeks – critics argue it effectively creates a near total ban on the procedure.

While proponents of abortion rights argue the law is unconstitutional and should be barred from enforcement, the justices weren’t considering the issue of whether it violated the precedent established in the 1973 Roe v. Wade case that legalized abortions before fetal viability.

Instead, the justices considered if the law could be challenged in federal court – and ultimately agreed in one of the lawsuits.

“In this preliminary posture, the ultimate merits question – whether S.B. 8 is consistent with the Federal Constitution – is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy,” Gorsuch wrote.

The law, which has been on the books for few months despite multiple challenges in state and federal court, won’t be halted as the lawsuit filed by abortion providers continues to make its way through the court.

Just after the law took effect in early September, the Supreme Court denied an emergency request for injunctive relief to block the six-week ban. A month later, the justices once again left the law in place, but they agreed to an expedited timeline and heard arguments on the two cases challenging the law in early November.

In her own opinion, in which she concurred and dissented in certain parts of the ruling, Sotomayor argued that the Supreme Court “should have put an end to this madness months ago” before the law went into effect on Sept. 1 and “it fails again today.”

While she agrees with the decision that petitioners can move forward with their lawsuit against certain executive licensing officials, she pushed back on the court’s ruling to remove state court officials and the Texas attorney general from it. Sotomayor raised concerns that by doing so, the Supreme Court is opening the door for other states to use S.B. 8 as a model to “nullify other federal rights.”

“I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review,” Sotomayor wrote in a scathing opinion.

“While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general,” she added. “By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”