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Supreme Court ‘Green-Lit’ Texas Abortion Ban, Clinic Lawyers Say

Dec. 10, 2021, 8:35 PM

Abortion-rights advocates said the U.S. Supreme Court effectively blessed Texas’ ban on abortion after about six weeks of pregnancy with a ruling that narrowed a legal challenge and left the law in force in the meantime.

The decision Friday said clinics and doctors could press claims in a federal trial court against a handful of state officials but not others named in the lawsuit. Justice Neil Gorsuch said the ruling left the providers with “some opportunities” to achieve their aims.

But Marc Hearron, the Center for Reproductive Rights lawyer who argued against the law, said the court “green-lit” the measure, making it impossible for the challengers to get the kind of statewide injunction they need. The law delegates enforcement power to private parties, a provision Texas included to make the law hard to block.

“Make no mistake, while the court allowed our legal challenge to proceed against some state licensing officials, an injunction against those officials will not block the Texas bounty-hunter scheme,” Hearron told reporters.

The ruling could be a bad sign for abortion-rights advocates as they await word on the fate of Roe v. Wade, the 1973 ruling that legalized the procedure nationwide. The court heard arguments Dec. 1 on a Mississippi appeal that asks the court overturn Roe in a case that centers on that state’s ban on abortion after 15 weeks of pregnancy.

The Texas law, known as S.B.8, is by far the strictest in effect in the nation, outlawing the procedure far earlier in pregnancy than the Supreme Court has ever allowed. The court let the law take effect on a 5-4 vote on Sept. 1.

The statute bars abortion after fetal cardiac activity can be detected and puts infringing clinics at risk of being shut down. It authorizes suits against a clinic, doctor or anyone who facilitates an abortion and lets successful plaintiffs collect a minimum of $10,000 in damages per procedure.

Chief Justice John Roberts issued a partial dissent criticizing the court for not going further, as did the three liberals in a blistering dissent written by Justice Sonia Sotomayor.

“The court should have put an end to this madness months ago, before S.B.8 first went into effect,” Sotomayor wrote. “It failed to do so then, and it fails again today.”

The court, she said, “betrays not only the citizens of Texas, but also our constitutional system of government.”

‘Unborn Children’

Justices Samuel Alito, Brett Kavanaugh and Amy Coney Barrett joined the entirety of Gorsuch’s opinion. Justice Clarence Thomas was alone in saying he would have thrown out the abortion providers’ challenge to the law in its entirety.

“We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts,” said Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, said in an emailed statement. “We have great hope that the court will return the issue back to the people to decide through their elected representatives, letting democracy and consensus prevail.”

Under a 1992 Supreme Court precedent, states can’t impose significant restrictions on abortion until the fetus becomes viable, or capable of living outside the womb, a point the court suggested at the time was 23 or 24 weeks. Gorsuch’s opinion didn’t mention the Mississippi case or the effort to overturn Roe.

The Texas clash centered on the law’s novel enforcement mechanism, which allows lawsuits against anyone who helps facilitate an abortion, but only by private parties and not by government officials.

Latest: Supreme Court Texas Abortion Ruling Paves Way for Copycat Laws

The providers’ lawsuit named various Texas officials as defendants, including a state judge and court clerk who would be responsible for handling cases in their jurisdictions; Attorney General Ken Paxton; and an anti-abortion pastor who the clinics say has threatened to sue those who violate the act.

Gorsuch said the only people who could be sued were four state licensing officials who might take enforcement action against violators of the law. He said state judges and clerks were protected by sovereign immunity, while Paxton didn’t have enough of a connection to any enforcement proceedings.

‘Many Paths’

Gorsuch said clinics and doctors could also raise constitutional claims in Texas state court, though the law bars state-court judges from issuing statewide injunctions.

“The truth is, many paths exist to vindicate the supremacy of federal law in this area,” Gorsuch wrote.

Sotomayor said Gorsuch’s reasoning “effectively invites other states to refine S.B. 8’s model for nullifying federal rights.”

Roberts said Texas “has employed an array of stratagems designed to shield its unconstitutional law from judicial review.” He pointed to provisions that let providers be sued in any of Texas’ 254 counties, bar successful defendants from recovering their legal fees, and impose retroactive liability should the Supreme Court allow stricter abortion laws.

“These provisions, among others, effectively chill the provision of abortions in Texas,” Roberts wrote. “Given the ongoing chilling effect of the state law, the district court should resolve this litigation and enter appropriate relief without delay.”

The Supreme Court, without explanation, also turned away the Justice Department’s bid to block the law. The court heard arguments in that case alongside the provider case on Nov. 1.

“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,” department spokesman Anthony Coley said in an emailed statement. “The department will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”

The provider case is Whole Woman’s Health v. Jackson, 21-463. The Justice Department case is U.S. v. Texas, 21-588.

--With assistance from Emma Kinery.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Tony Czuczka

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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