Texas abortion law: U.S. Supreme Court rules to allow future challenges

Texas Politics

WASHINGTON D.C. (Nexstar) — The United States Supreme Court ruled Friday to allow abortion providers’ lawsuit to move forward in Texas in regards to the law that bans most abortions, but keeps the law in place for now.

Justices ruled Friday morning in the case of Whole Women’s Health v. Jackson that abortion clinics can continue to challenge the law in lower courts, coming more than a month after justices first heard the case on Nov. 1, considering procedural questions about the law, not the substance of the law itself.

The high court also dismissed the Department of Justice’s lawsuit against Texas in regards to enforcement of the law.

“The Department of Justice brought suit against Texas Senate Bill 8 because the law was specifically designed to deprive Americans of their constitutional rights while evading judicial review,” the DOJ said in a statement. “The department will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”

The Texas law bans abortion once cardiac activity is detected in the womb, which can be as early as six weeks, a time before most women know they’re pregnant. It makes no exceptions for rape or incest. The court’s previous major abortion rulings allow states to prohibit abortions far past the six-week mark, closer to once a fetus is viable outside of the mother’s womb.

Since taking effect in September, it’s had a chilling effect on all abortions, not just those after six weeks.

“Today marks day 101 that Whole Woman’s Health staff have had to turn away Texans seeking abortion care,” Whole Woman’s Health CEO Amy Hagstrom Miller said following SCOTUS’ decision.

The court’s decision limits who the providers will be able to sue in the lower courts.

“They said that you can’t sue the state court judges, you can’t sue certain private litigants,” constitutional law professor Josh Blackman said Friday.

Abortion providers will only be able to sue Texas medical licensing officials, which Texas Right to Life sees as a win.

“By trying to limit this lawsuit to the state health officials, that doesn’t affect the ability, or at least not on paper right now, the ability for private citizens to enforce. So we’re going to see how the court might have, the lower court might interpret that,” Kim Schwartz with Texas Right to Life said.

Even after the lower court’s decision, the law is expected to land back in the Supreme Court in a matter of months.

“The other issue lurking in the background is Mississippi case called ‘Dobbs.’ This case considers whether Mississippi can ban abortion at 15 weeks, the court very well may overrule Roe v. Wade. And if the court does that, then SB 8 becomes a much stronger footing. So I think we’ll really have to wait till the end of June to know the fate of the Texas fetal heartbeat law,” Blackman explained.

Earlier this week, state District Judge David Peeples issued an opinion that the law was unconstitutional when it came to its enforcement, allowing citizens to sue anyone who assisted or performed an abortion for $10,000 after cardiac activity in a fetus, but he didn’t issue an injunction to stop enforcement.

“This case is not about abortion; it is about civil procedure,” he wrote in his order.

The case raised a complex set of issues about who, if anyone, can sue over the law in federal court, the typical route for challenges to abortion restrictions. Indeed, federal courts routinely put a hold on similar laws, which rely on traditional enforcement by state and local authorities.

Another issue is whom to target with a court order that ostensibly tries to block the law. Under Supreme Court precedents, it’s not clear whether a federal court can restrain the actions of state court judges who would hear lawsuits filed against abortion providers, court clerks who would be charged with accepting the filings or anyone who might someday want to file a lawsuit.

The Texas law was specifically designed to put obstacles in the way of legal challenges, and so far it has worked.

The justices declined to block the law once before, voting 5-4 in September to let it take effect. At the time, the three appointees of former Pres. Donald Trump and two other conservative colleagues formed the majority.

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