Supreme Court rules abortion clinics can challenge Texas law


WASHINGTON – The Supreme Court on Friday gave abortion providers a narrow legal avenue to challenge Texas’ ban on ending pregnancies after six weeks, but the fragmented ruling left the law in effect for now and has made any rapid resumption of such abortions in the state unlikely.

While most judges found common ground to allow claimants to challenge the law in a limited way, they were strongly divided over whether to sue a wide range of Texas officials, an important procedural matter that could affect the future of the state’s abortion restrictions. A slim conservative majority said it could not be, prompting heated exchanges between judges over whether the court was stepping back from its role as protector of constitutional rights.

Eight judges agreed the head of the state’s medical council and other licensing authorities could face prosecution before the law is applied to test its constitutionality, despite Texas efforts to isolate the law of federal court review by granting enforcement power to private litigants who can earn cash rewards for successful costumes.

But the Tory majority have said other state officials, including the attorney general and court clerks in Texas, guardians of the private litigation that enforces the ban, cannot be prosecuted.

Overall, the court’s rulings are somewhat of a setback for Texas, but they potentially leave room for the state – or other states – to try to pass new laws aimed at undermining abortion rights or other types of constitutional protections. Abortion providers, meanwhile, said the ruling didn’t necessarily give them enough room to get a Federal District Court ruling that would effectively block the state’s ban, which has been in effect for more than three months.

The Supreme Court has separately declined to render a decision in a related challenge to the Texas law, known as SB 8, brought by the Department of Justice, and denied the department’s emergency request to block the law. at once.

The law is the strictest in the country, banning abortions after about six weeks of pregnancy, much earlier than current Supreme Court case law allows. It prohibits doctors from knowingly performing an abortion if there is a “detectable fetal heartbeat,” which the law defines as including early cardiac activity in the embryo, and does not contain exceptions for rape or rape. incest.

Judge Neil Gorsuch wrote that there were serious legal problems allowing abortion rights protesters to prosecute a multitude of state government actors.


Photo:

erin schaff / Agence France-Presse / Getty Images

The impact of Friday’s decision on abortion access may be limited because the High Court, in another pending case, is widely re-examining the merits of constitutional protections for abortion rights. In that Mississippi litigation, judges are weighing whether to restrict or withdraw the right to terminate an unwanted pregnancy that the court recognized in the 1973 case, Roe v. Wade.

“I think all eyes are on the Supreme Court’s decision in the Mississippi case,” said Julia Kaye, an attorney with the American Civil Liberties Union Reproductive Freedom Project.

John Seago, legislative director of Texas Right to Life and backer of SB 8, called the High Court ruling a partial victory.

“It’s going to be very difficult for a broad injunction to be granted by the district court. Now that the case only concerns state agencies, an injunction would simply apply to them, ”Mr. Seago said. “We are very optimistic that the law will continue to be applied until the future, when the case may return to the Supreme Court.”

Those on the other side did not disagree.

“It’s amazing that the Supreme Court basically said that federal courts cannot stop this bounty hunter program passed for blatantly denying Texans their constitutional right to abortion,” said Nancy Northup, president of the Center. of Reproductive Rights, a provider rights advocacy group. . “For 100 days now, this six-week ban has been in effect, and today’s ruling means there is no end in sight.”

Friday’s decision saw the judges split into several camps.

The Tories, led by Judge Neil Gorsuch, said that regardless of the nature of the Texas ban, also known as the Texas Heartbeat Act, there were serious legal issues in allowing right protesters to l abortion to prosecute a multitude of state government actors.

He and Justices Samuel Alito, Brett Kavanaugh and Amy Coney Barrett have said only a select group of officials can be prosecuted. Judge Clarence Thomas said he would have dismissed the suppliers’ claims completely.

Typically, abortion providers challenged the restrictions when they were enacted by prosecuting state officials charged with enforcing them. In an effort to neutralize this tactic, Texas instead assigned the enforcement power to private civilian litigants, who can win prizes of at least $ 10,000 if they win in court.

The providers therefore sued several types of officials who they believed would nonetheless be involved in the enforcement, including state court clerks who would register private prosecutions under SB 8.

But Judge Gorsuch said that if “federal judges could bar state courts and registrars from settling disputes between private parties under this state law, what would prevent federal judges from settling disputes between private parties under this state law?” ‘prohibit state courts and registrars from hearing and registering disputes between private parties under other state laws?

Chief Justice John Roberts and the court’s three Liberal justices said the court had made a serious mistake in not allowing these clerks and other officials to be sued, and they warned the limited ruling could hurt in the long run. the institutional role of the tribunal and the protection of constitutional rights. .

“Texas has used a series of ploys designed to protect its unconstitutional law from judicial review,” the chief justice wrote. While state legislatures can employ such ploys to gut federal rights, “the Constitution itself becomes a solemn parody,” he wrote, citing a decision from 1809.

“The nature of the federal law violated does not matter; it is the role of the Supreme Court in our constitutional system that is at stake, ”he added.

Judge Sonia Sotomayor, writing on behalf of the three liberals in the court, criticized the majority for allowing Texas law to remain in effect for months “in open disregard of the precedents of this court.”

Judge Sonia Sotomayor criticized the majority for allowing Texas law to remain in force for months “in open disregard of the precedents of this Court.”


Photo:

Erin Schaff / Associated press

“The Court should have ended this madness months ago, before SB 8 first came into effect,” she wrote, joined by Justices Stephen Breyer and Elena Kagan. She wrote that the majority’s reasoning still left room for creative state lawmakers to deny a host of constitutional rights using Gorsuch’s opinion as a roadmap “to more completely deny any application by representatives of the state. ‘State, including those responsible for licensing’.

Justice Gorsuch dismissed these concerns, writing that there were still other avenues to assert federal constitutional rights, including pre-application challenges that could be brought in state courts. He noted that on Thursday a state judge ruled that parts of the law enforcement structure were unconstitutional and should not be enforced by Texas courts.

The Supreme Court’s ruling comes more than five weeks after hearing expedited oral arguments in two cases in which abortion providers and the Justice Department filed a lawsuit to block SB 8.

When the law came into force on September 1, the Supreme Court, on a 5-4 vote, refused to block it at that time, with the court’s more conservative justices saying procedural complexities prevented them from d ‘to intervene. Weeks later, the court moved at unusual speed to consider the two legal challenges and held expedited oral arguments on November 1.

After clinics ran into the first roadblocks from the courts, the Justice Department intervened and filed a lawsuit against Texas, arguing that the state was engaged in an illegal scheme to deprive citizens of their facilities. constitutional rights.

The department said on Friday it would “continue our efforts in lower courts to protect women’s rights and uphold the Constitution.”

Since the law came into effect, the number of abortions performed in Texas clinics has declined and women have crossed state lines to see providers who can perform procedures later in the week. the pregnancy.

State clinics say the law has created an ethical dilemma for them by refusing patients, some of whom cannot travel elsewhere. They also warn of the ripple effects of patients traveling out of state, creating higher demand at clinics in other states and longer waits for the procedure.

Under current High Court case law, women have a constitutional right to terminate their pregnancy before fetal viability, considered to be somewhere around 24 weeks.

In the Mississippi case, the state is seeking a ban after 15 weeks and argues that the abortion rights framework dating from Roe v. Wade of 1973 is incorrect and should be dropped.

The court heard arguments in that litigation last week, with conservative judges strongly questioning the adequacy of constitutional protections for abortion rights.

Write to Brent Kendall at [email protected] and Jess Bravin at [email protected]

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