Supreme Court allows clinics to challenge Texas' abortion law, lets Senate Bill 8 stand

Madlin Mekelburg
Austin American-Statesman

The U.S. Supreme Court said Friday that Texas abortion providers can sue some state officials to block the state's six-week abortion ban, but justices are allowing the law to remain in effect for now.

The ruling will allow abortion providers to return to a district court in Austin and argue their case, essentially restarting the complicated legal battle over the law that has intensified the national debate over abortion and raised questions about when states can be sued over laws they adopt.

But the abortion providers behind the lawsuit decried Friday's opinion as "cruel and inhumane" because the law, know as Senate Bill 8, can continue to be enforced and the scope of their litigation has been narrowed.

"This is a dark day for abortion patients and for physicians and providers," said Marc Hearron, senior counsel at the Center for Reproductive Rights. "It is also a dark day for anyone who cares about constitutional rights."

At issue is the unusual enforcement mechanism written into the Texas law, which allows any private individual to sue abortion providers or people who aid and abet an abortion past six weeks' gestation. Successful litigants can collect at least $10,000.

Crossing state lines:Her fetus no longer viable, Texas woman describes crossing state lines to have an abortion

Attorneys for Texas argue that federal courts, including the Supreme Court, lack jurisdiction to block the law because the state is not responsible for ensuring compliance. But opponents say the law was drafted specifically to evade judicial review and sets a dangerous precedent that could be replicated by states attempting to block other constitutional rights.

Writing for the court Friday, Justice Neil Gorsuch said the court holds that the "petitioners may bring a pre-enforcement challenge in federal court as one means to test S.B. 8’s compliance with the Federal Constitution."

Abortion opponents clashed with abortion rights activists outside the U.S. Supreme Court in Washington on Monday.

State Sen. Bryan Hughes, author of the law, said the opinion "preserves the heart of the law and ensures that doctors who perform illegal abortions are held accountable."

"By leaving in place the Texas Heartbeat Law today, the Supreme Court affirmed two fundamental conservative principles: the sanctity of life and the sovereignty of states," Hughes, R-Mineola, said in a series of tweets. "This is a total victory for life, and it is long overdue."

Lawsuits against Texas' abortion law can proceed 

The court on Friday did not weigh in on abortion rights or the constitutionality of SB 8 but considered whether legal challenges brought by abortion providers against Texas Attorney General Ken Paxton, a state court clerk, a state court judge and several state licensing officials can advance.

Justices said the challenges to Paxton, the state court clerk and the state court judge should be dismissed — but the challenges to state licensing officials can continue before U.S. District Judge Robert Pitman in Austin, an Obama appointee who previously ruled that the law is unconstitutional.

"More people will continue to suffer as this case winds its way through the legal system," said Dr. Bhavik Kumar, a staff physician at Planned Parenthood Center for Choice in Houston. "Even with some legal path forward, abortion access in Texas cannot be fully restored until Senate Bill 8 is blocked."

Hearron said plaintiffs will return to federal court to proceed with litigation against the state licensing officials, but even if the district court decides to issue an injunction in that case, it will be more limited in scope than had the full lawsuit been permitted to advance.

"An injunction against those officials is not an injunction blocking the bounty hunter scheme," he said.

More:How Texas' abortion law, the nation's most restrictive, got to this point

The Supreme Court also dismissed a legal challenge brought against the law by the Biden administration, issuing a two-sentence opinion dismissing the case as "improvidently granted."

Paxton celebrated the dismissal Friday, writing in a tweet that the move was a "huge win" for Texas.

"Biden’s case against Texas has been kicked out of court!!" he wrote. "This morning’s SCOTUS ruling leaves SB8 in effect. I will continue to defend #Texas law and FIGHT FOR LIFE!!!"

Dig deeper:Some Supreme Court justices skeptical of Texas abortion law, impact on other rights

Friday was the third time that the Supreme Court declined to intervene and block the Texas law, which is the most restrictive abortion ban in the nation. A divided court denied a request from abortion providers to block SB 8 from going into effect Sept. 1 and again allowed the law to stand in late October, when the court agreed to hear oral arguments in the two legal challenges to the ban — the suit from abortion providers and the suit from the Department of Justice.

Justices also are considering a challenge to a ban on abortion after 15 weeks of pregnancy adopted in Mississippi, a separate case that will have implications in Texas and other conservative states where elected officials want to restrict access to the procedure.

The court heard arguments in the case this month and signaled that it is open to upholding the law but did not indicate how far it might go to undermine its landmark decisions that establish a constitutional right to abortion.

More:As Supreme Court weighs Texas abortion law, opposing sides focus on its impact

Supreme Court ruling adds to Texas' tense legal landscape on abortion

In Texas, the shifting legal landscape surrounding abortion has left providers and women looking to access the procedure scrambling for options.

Major clinics across the state have agreed to comply, ceasing abortions after six weeks of pregnancy. Employees have described fielding calls from patients struggling to understand the parameters of the law and are tasked with directing them to legal resources available in state or referring them to clinics across state lines.

Meanwhile, abortion opponents have celebrated the staying power of SB 8 and reported a dramatic decline in the number of abortions statewide since its implementation. A University of Texas study found that the number of abortions performed in the state has dropped by half since Sept. 1.

Other legal challenges to the law are also progressing, including in Travis County. A state district judge on Thursday ruled that some aspects of the law violate the Texas Constitution and should not be enforced but declined to issue an injunction blocking enforcement of the law

While the federal cases are testing whether the state can be sued over this law, the cases before the state district judge were filed against Texas Right to Life, an anti-abortion group and one of the would-be litigants in the types of lawsuits permitted under SB 8.

In Friday's opinion, Gorsuch referenced the state court case as an example of other legitimate avenues available for challenging SB 8. 

"Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S.B. 8," he wrote. "Any individual sued under S.B. 8 may raise state and federal constitutional arguments in his or her defense without limitation. Whatever a state statute may or may not say about a defense, applicable federal constitutional defenses always stand available when properly asserted."

More:Texas judge rules some provisions of state's restrictive abortion law violate Texas Constitution

Further reading

More:Texas abortion law the latest in a pattern of restrictions from the GOP-controlled Legislature

More:Does the Texas abortion law protect victims of sexual assault?

More:As Supreme Court weighs Texas abortion law, opposing sides focus on its impact

More:Will Roe v. Wade and the right to abortion be overturned? What would that mean for Texas?

More:Here's who voted for (and against) Texas' new abortion law in the House and Senate

More:Abortions after 6 weeks of pregnancy resume in Texas, after judge blocks new law