The court allowed the lawsuit to continue with an 8: 1 decision. Abortion providers will again try to block the law as it progresses through the trials in the lower courts.
by Reese Oxner
Dec 10, 20219:25 Central
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The US Supreme Court closed on Friday ruled that legal challenge filed by abortion providers against the Texas Abortion Restrictions Act may continue, breathing new life into the most significant effort to date to repeal the law.
The court allowed the lawsuit to proceed with an 8-1 decision, however, did not stop enforcement of the law. Instead, abortion providers will try again to block the law as it progresses in lower court cases.
The judges also allowed abortion providers to sue only some state license officers, but not state court clerks – citing difficulties related to of sovereign immunity. This could make it harder for vendors to block enforcement of the law altogether in court.
This victory for abortion providers may be short-lived as the Supreme Court examines a Mississippi case that could end constitutional protection for abortions. They are due to rule on the case next summer.
The Supreme Court ruled the Texas case five weeks after judges spoke orally about the law on November 1st. Abortions after about six weeks of pregnancy have been practically banned for over 100 days in Texas since the law went into effect Sept. 1.
« The legal back and forth was excruciating for our patients and heartbreaking for our staff. We know this decision is not the end and our fight against this law is not over, « said Amy Hagstrom Miller, President and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, in a statement. « Whole Woman’s Health is long-term and we look forward to resuming the full abortion care we are trained to provide. » The verdict comes a day after a district judge from a state of 14 abortion advocates approves and declares that Texas law is against the state’s constitution even though it did not prevent its enforcement. That ruling would likely be used as a precedent in individual lawsuits filed under the law.
Earlier this month, the Supreme Court heard arguments in Dobbs v Jackson Women’s Health Organization, a lawsuit that came after Mississippi passed law had passed that bans most abortions after 15 weeks of gestation. While the Texas case in the High Court focused on the validity of the unique enforcement mechanism used by the state’s abortion law, the Mississippi case questions constitutional protections for access to abortion – and many court observers believe the judges are ready are to remove this protection.
The Supreme Court currently has a conservative super majority, six out of nine judges are appointed by Republican presidents. These Conservative members have shared anti-abortion positions in the past, and during oral arguments on the Mississippi case they appeared ready to challenge Roe v. Wade, at least partially overturning the landmark 1973 case that helped establish constitutional protection for abortions.
If that happens, it will mean the end of legal abortions in Texas. That’s because the Texas legislature passed a « trigger » law earlier this year that will come into effect automatically if Roe is « partially or fully » overturned. It would also nullify much of the battle over Texas’ abortion law.
The Supreme Court on Friday also ruled on a separate case filed by the US Department of Justice against the Texas abortion law. In this case, the Supreme Court found that the DOJ has no power to sue Texas over its Abortion Act, commonly referred to as Senate Act 8. The court effectively ended the lawsuit and the Biden government’s role in litigation over the controversial bill, saying it was « accidentally granted. » Overturn the law enforcement mechanism. That mechanism was at the center of the oral argument at the November 1st Supreme Court hearing.
The two separate lawsuits by the US Department of Justice and the abortion providers had the Texas Abortion Act months after the judges denied it, an emergency petition challenged by abortion providers trying to suspend the law again brought to the Supreme Court.
The Supreme Court decision on Friday was not about the general constitutionality of the law, but rather the procedural issues that the legal efforts to challenge it tormented. During the arguments, six out of nine Supreme Court justices raised concerns, particularly about the way Texas is enforcing the law – and how it could be used to restrict other constitutional rights.
« A loophole is being exploited here, » said Judge Brett Kavanaugh during the November 1st hearing. “It could be the right to freedom of expression. It could be the free exercise of religious rights. It could be the rights of the second amendment – if that position is accepted here. ”
The Texas law, which forbids abortion before many people know they are pregnant, had successfully blocked proceedings in the state with the unique tactic. Its enforcement mechanism has allowed the law to defy judicial review by making it harder to sue enforcers of the law, which is the traditional way to prevent a law from going into effect.
To block laws, Courts typically instruct state officials not to enforce them. But that is impossible under the Texas Abortion Act, which made private individuals the de facto enforcer by empowering them to sue those who “support or support” abortions after about six weeks of pregnancy – promising them $ 10,000 if they win their lawsuit.
Melissa Murray, professor at New York University School of Law, said the Supreme Court decision on Friday was more likely due to the idea that “everyone is concerned about the implications of this Kind of enforcement mechanism should make on the rule of law in general – not just specifically on abortion. ”
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