WASHINGTON — The Supreme Court on Friday allowed a challenge to a Texas abortion law that banned most abortions in the state after going into effect for about six weeks, ruling that abortion providers in the state can sue some state officials in federal court, despite procedural law. hurdles imposed by the unusual structure of the law.
But the Supreme Court declined to block the law in the meantime, saying lower courts should consider the matter.
The development was both a win for and a disappointment to abortion rights supporters, who had hoped the judges would reverse course from a September 1 ruling that brought the law into effect, preventing clinics in the state from carrying out the procedure and forcing many women who wish to have abortions to leave the state.
The decision in the Texas case came less than two weeks after the court heard a direct challenge to the right to abortion, brought in 1973 in Roe v. Wade, in a case over a Mississippi law that banned most abortions after 15 weeks. Roe prohibits states from banning abortion before the fetus is viable, the point at which fetuses can sustain life outside the womb, or about 23 to 24 weeks into a pregnancy.
The court’s six-member conservative majority seemed willing to uphold the Mississippi law, and several judges indicated they would vote to overrule Roe outright. A ruling in the case is not expected until the end of June.
Texas law ignores Roe’s viability line by excluding abortions as soon as fetal heart activity can be detected, usually around 6 weeks.
The challenges to the Texas law focused not on the constitutionality of the law, but on whether the law could be challenged in court by abortion providers in the state or the federal government. The cases gave the court the opportunity to reverse its earlier decision, bringing the law into effect before the judges wrestled with its constitutionality or settled the question of how it could be challenged.
Texas law, known as Senate Bill 8, has unusual features.
Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. Texas law, which makes no exceptions for pregnancies resulting from incest or rape, prohibits state officials from enforcing them and instead mandates private individuals to sue anyone who performs or “aids and supports” the procedure. “.
The patient may not be prosecuted, but doctors, clinicians, counselors, people who help pay for or lead them to the procedure are all potential suspects. Plaintiffs, who do not need to live in Texas, have any connection with the abortion, or have suffered any injuries, are entitled to $10,000 and their legal fees recovered if they win. Defendants are not entitled to legal costs.
The court’s earlier meeting with the law caused bitter division among the judges, with Chief Justice John G. Roberts Jr. joined the three more liberal members of the court who disagreed.
The majority position, released just before midnight on September 1, was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency filing had not argued their case in the face of “complex and new” procedural questions. The majority stressed that it did not rule on the constitutionality of Texas law and did not intend to limit “procedural appropriate challenges” to it.
Each of the dissenting justices issued an opinion in that earlier ruling.
“The court order is astonishing,” Judge Sonia Sotomayor wrote, for example. “Listed with an application to impose a blatantly unconstitutional law designed to prohibit women from exercising their constitutional rights and circumvent judicial control, a majority of judges have chosen to bury their heads in the sand .”
“The court has rewarded the state’s efforts to delay federal review of a clearly unconstitutional statute, enacted in contempt of court precedents, through procedural entanglements of the state’s own creation,” Judge Sotomayor wrote. “The court should not be so content with ignoring its constitutional obligations to protect not only women’s rights, but the sanctity of its precedents and of the rule of law.”
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Mississippi abortion law. The court heard arguments in a fight against a Mississippi law that bans most abortions after 15 weeks. The case could lead to the end of Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
The case returned to the Supreme Court along two separate tracks. After the court rejected the service providers’ request for emergency aid, the Justice Department filed its own objection to the law, one which it said was not subject to the procedural barriers the service providers had faced. The case soon reached the Supreme Court on an urgent request.
The abortion providers also returned to court, asking the judges to use an unusual procedure — “certiorari before judgment” — to skip the appeals court and decide whether they had the right to prosecute.
The Supreme Court agreed to rule on both cases on October 22, putting them on an extraordinarily fast track. It heard arguments just 10 days later, on Nov. 1, questioning whether the providers and the government were entitled to sue in light of the law’s unusual structure.
In those altercations, two members of the original majority, Justices Brett M. Kavanaugh and Amy Comey Barrett, asked questions that suggested they may have changed their mind about the law.