Texas abortion providers can sue some state officials in an attempt to challenge the state’s six-week abortion ban, the Supreme Court ruled Thursday, in a decision that opens the door to overturning the nation’s strictest abortion regulation.
The law remains in effect.
By banning abortion as early as six weeks into pregnancy, the Texas law clearly flies in the face of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, and other Supreme Court abortion decisions. But that wasn’t the issue at the heart of the two legal challenges considered by the Supreme Court.
Unlike other conservative states’ six-week abortion bans, which have been frozen by court challenges, the Texas ban lets ordinary people sue anyone who “aids or abets” an illegal abortion. People who sue successfully can net at least $10,000 in damages, plus attorneys’ fees.
In their lawsuit, Texas abortion providers argued that, by deputizing its citizens to enforce its law, Texas was tried to box courts out of being able to review the ban’s constitutionality.
In the Supreme Court’s opinion, Justice Neil Gorsuch suggested that the Supreme Court was troubled by the far-flung possibility that other states could use the DIY model set by the Texas law to undermine other rights. In November arguments over the case, the Texas solicitor general, Judd Stone, seemed to admit that such a possibility was very real.
“If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law, what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws?” Gorsuch wrote.
The justices did, however, narrow the list of people who exactly the Texas abortion providers could sue, to include only some executive licensing officials. And Justice Sonia Sotomayor, in particular, was incensed by the court’s ruling.
“The Court should have put an end to this madness months ago, before SB 8 first went into effect. It failed to do so then, and it fails again today,” Sotomayor wrote in an opinion, referring to the legal title of the Texas ban. “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other states to refine SB 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”
In a separate lawsuit, President Joe Biden’s Justice Department tried to prove that the federal government has the ability to sue Texas over the law.
“The supremacy of federal law cannot be that easily subject to manipulation,” Elizabeth Prelagor, the U.S. solicitor general, told the justices in arguments. If the law stands, she continued, “No constitutional right is safe. No constitutional decision from this court is safe.”
However, the justices dismissed the Justice Department case as “improvidently granted.”