WASHINGTON — A divided Supreme Court refused Friday to block a Texas law that has banned most abortions there, but opened the door narrowly for abortion providers to challenge it before a federal judge.
The court’s conservative majority said abortion providers may sue state licensing officials, but not the state judges and clerks who are charged with handling lawsuits spurred by the law.
Chief Justice John G. Roberts Jr. and the three liberals dissented in part, saying the court should have gone further to allow challenges to the law. Roberts said Texas sought to “nullify this court’s rulings” that held women have a right to choose abortion.
In a related case, the court tossed out the appeal brought by the Biden administration that sought to halt the Texas law known as SB 8. It makes abortions illegal after six weeks and authorizes private lawsuits against doctors who violate it.
Justice Sonia Sotomayor, speaking in dissent, said the “court should have put an end to this madness months ago, before SB 8 first went into effect. It failed to do so then, and it fails again today.”
The 5-4 split within the court may well reflect the divide over whether to overturn Roe vs. Wade and the right to abortion. During arguments last week in a Mississippi case, the five conservatives sounded ready to overturn that right.
In early September, the same five justices stood aside and allowed the Texas law to take effect, even though it deprived pregnant women of their right to choose abortion. They included Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, President Donald Trump’s three appointees.
At issue in the Texas case was whether a federal judge could block the state’s abortion law as unconstitutional. Because of the unusual enforcement mechanism of the law, it was not clear who could be sued. The law was not enforced by state officials, but instead through private lawsuits. The threat of lawsuits has shut down or severely restricted most abortion providers in Texas.
Speaking for the fractured court on Friday, Gorsuch said abortion providers should pursue their challenges in the Texas state courts.
“This court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court,” he wrote.
Gorsuch said state judges and their clerks are immune from being sued by the abortion providers, and the state attorney general has no role in enforcing the law.
But he said four state officials who license medical professionals may be sued because they “may or must take enforcement actions” against doctors who violate state law.
“Accordingly, we hold that sovereign immunity does not bar the petitioners’ suit against these named defendants at the motion to dismiss stage,” he wrote in Whole Woman’s Health vs. Jackson.
Eight justices agreed on this point, all but Justice Clarence Thomas. He would have dismissed all the challenges to the Texas law.
Friday’s ruling means abortion rights advocates may go back to a federal judge in Austin and urge him to block the state law on the grounds it violates the Constitution. But any such decision is certain to be challenged in the conservative 5th Circuit Court in New Orleans. Twice already, the appeals court has halted challenges to the Texas abortion ban.
The outcome is a small victory for the abortion providers but far less than they hoped for. The Texas law prevents most pregnant women in Texas from obtaining a legal abortion, yet it remains in effect because no federal judge has been allowed to intervene.
Nancy Northup, president of the Center for Reproductive Rights, said it “is stunning that the Supreme Court has essentially said that federal courts cannot stop this bounty-hunter scheme enacted to blatantly deny Texans their constitutional right to abortion. For 100 days now, this six-week ban has been in effect, and today’s ruling means there is no end in sight.”
Marjorie Dannenfelser, president of the national anti-abortion group Susan B. Anthony List, welcomed the ruling.
“We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts,” she said. Citing last week’s arguments in the Mississippi case, she said “we have great hope that the court will return the issue back to the people to decide through their elected representatives, letting democracy and consensus prevail.”
When the justices heard arguments in the Texas case last month, Kavanaugh and Barrett sounded as though they would vote to block the law, or at least clear the way for a successful challenge. But instead, they joined with the more conservative justices to allow only the most narrow of challenges.
This was similar to the court’s approach in September.
In that earlier order, the court said the law raised “complex and novel ... procedural questions” because officials had no direct role in enforcing the ban on most abortions.
Their decision drew sharp criticism and may well have prompted at least some justices to reconsider the matter. To many, it appeared the new conservative majority had allowed the nation’s largest red state to ignore nearly 50 years of court precedents that held abortion was a constitutional right.
Responding to their initial rebuff, lawyers for the abortion providers went back to the high court and urged the justices to fast-track a hearing on the procedural questions raised by a law that is enforced through what they called a private bounty scheme.
The court heard arguments from both sides on Nov. 1, when it appeared most of the justices were prepared to block the law. Kavanaugh said gun rights and religious liberty could be put in doubt if the court allowed states to use Texas-style lawsuits as a means to nullify constitutional rights.
