WASHINGTON — The Supreme Court ruled Friday that Texas cannot shield its 6-week abortion ban from court review, even by outsourcing enforcement to private citizens and writing into the law that defendants cannot invoke a Constitutional defense.
The 8-1 ruling leaves the ban in effect, for now.
Roughly one in 10 American women of child-bearing age live in Texas. Since the ban took effect Sept. 1, most have been unable to exercise the right to terminate pregnancy guaranteed since 1973.
“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. 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. Any individual sued under S. B. 8 may raise state and federal constitutional arguments in his or her defense without limitation,” the ruling reads.
Justice Neil Gorsuch, one of the most conservative members of the court, wrote the opinion for the 8-1 majority. The four most conservative justices fully agreed. A number of justices dissented with aspects of the ruling.
“I dissent...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. By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S.B. 8′s model for nullifying federal rights,” wrote liberal Justice Sonia Sotomayor.
The future of legalized abortion nationwide remains uncertain as the court, with its biggest conservative majority in decades, weighs the future of Roe vs. Wade.
That 1973 landmark ruling struck down a decades-old Texas ban and recognize the right to terminate pregnancy until the point of viability, currently about 23 weeks.
On Dec. 1, three months after allowing the latest Texas ban to take effect, the justices heard arguments on Mississippi’s attempt to outlaw abortion after 15 weeks. The law blatantly violates Roe. So for the court to even entertain arguments in that case, Dobbs vs. Jackson Women’s Health, signaled a willingness to scale back or scrap federal protection for abortion rights.
The Dobbs ruling could be a blockbuster, and is expected in late June.
Texas’ ban is tied to embryonic cardiac activity, which can be detected around six weeks after a woman’s last period. That’s ever earlier and therefore an even bigger snub of Roe and related rulings. But Senate Bill 8 was designed to confound the courts, which enforce abortion rights through injunctions that bar state officials from implementing laws that create an “undue burden” on women seeking a pre-viability abortion.
SB 8 isn’t enforced by any state or local official.
Instead, it authorizes legal vigilantes to sue doctors, drivers or anyone else who “aids or abets” an abortion after detection of the electrical pulses that abortion foes refer to as the fetal heartbeat.
Plaintiffs can collect at least $10,000 from losing defendants, plus legal fees. The number of potential lawsuits related to a single abortion is unlimited. The law bars defendants from attacking the constitutionality of the law, even though that embryonic “heartbeat” comes roughly four months earlier than viability – the point at which a baby born prematurely can survive.
“Whatever a state statute may or may not say about a defense, applicable federal constitutional defenses always stand available when properly asserted,” the court ruled Friday.
At the same time, the court dismissed as defendants the Texas attorney general, Ken Paxton, and a district court clerk and judge.
“The petitioners have not identified any enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising,” the court held.
During three hours of oral arguments Nov. 1, it seemed clear that even justices hostile to abortion rights couldn’t stomach the way the Legislature tried to ward off judicial oversight.
Justice Brett Kavanaugh, one of the six conservatives, elicited a concession from Texas solicitor general Judd Stone that under SB 8, lawsuits could be filed retroactively for abortions performed legally under Roe, if and when the Supreme Court strikes down that ruling.
The prospect of millions of retroactive lawsuits did not sit well with justices across the ideological spectrum.
The Biden administration and abortion clinics challenged the Texas law.
The law has proven an incredibly effective deterrent. With hardly any lawsuits filed, abortions have plummeted in Texas. Clinics in neighboring states have been swamped with patients who traveled hundreds of miles for a procedure they could no longer obtain close to home.
A variety of justices voiced concern about the implications if SB 8 were upheld: If Texas could nullify a constitutional right with impunity simply by outsourcing enforcement to private citizens, other states could render the courts powerless to protect religious liberties, free speech or gun rights.
Public support for the Texas law is weak. A Washington Post/ABC News poll released in mid-November found that just 29% of voters nationwide wanted the court to uphold the law, while 60% wanted it struck down.
The question was specific: “A state law in Texas authorizes private citizens anywhere in the country to sue anyone who performs or assists in an abortion in Texas after about six weeks of pregnancy. Do you think the U.S. Supreme Court should uphold or reject this law?"
Public support for Roe is also 2-1 – 60% say the court should reaffirm the ruling, versus 27% who want Roe overturned. Even among Republicans, support for overturning Roe is narrow: 45-42.
Surveys have found similar results for nearly two decades.
Abortions in Texas dropped by at least half since SB 8 took effect on Sept. 1. Five of the nine justices rejected pleas to halt the law as lower courts addressed an assortment of challenges.
Anti-abortion activists took that as a welcome omen that the court may soon overturn Roe, in which a Dallas woman known in court as Jane Roe challenged a near-total ban on abortion in Texas that had been in place for decades.
If Roe does fall, Texas is one of 20 states with abortion bans that would kick in immediately if Roe is overturned. Greg Abbott signed House Bill 1280, the Texas trigger law, in June.
Thousands of Texas women have sought abortions in neighboring states since Sept. 1. Many had to drive hundreds of miles and even that costly and time consuming option would be severely limited in a world without Roe, because three adjacent states – Oklahoma, Arkansas and Louisiana – are among the 20 that would immediately shut down access.
New Mexico has no trigger law, but it also has no law ensuring access to abortion in the absence of Roe – a preemptive protection adopted by 14 states and the District of Columbia.
Most of those laws mirror Roe in setting a cutoff at fetal viability, though Oregon, Vermont and DC set no limitation.
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