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Supreme Court says Texas abortion providers may proceed with challenge of six-week ban, leaves law in effect for now

The Supreme Court in Washington. (Al Drago/For The Washington Post)

The Supreme Court on Friday left in place a Texas law that bans most abortions after six weeks, and provided only a narrow path for providers to challenge in federal court what is the nation’s most restrictive law on the procedure.

The court’s splintered decision allows the providers to return to a district judge who once blocked the law, saying it violated the constitutional right to abortion. But the decision limited the relief in a way that lawyers said probably makes it impossible to suspend the law while the legal battle continues.

Marc Hearron, who argued the case for the Center for Reproductive Rights, told reporters in a call that the majority decision essentially “greenlit” the law, making a statewide injunction impossible and encouraging other states to follow suit.

Others said the decision could be a sign as the Supreme Court also considers this term Mississippi’s request to overturn Roe v. Wade, the 1973 decision that guaranteed a constitutional right to abortion.

“Abortion rights supporters and abortion providers have been trying to sound the alarm that Roe is under significant threat,” said Julie Murray, a lawyer for Planned Parenthood. Friday’s decision “certainly confirms that we are in a period of great threat to the abortion right.”

Supreme Court seems inclined to uphold Mississippi abortion law that would undermine Roe v. Wade

President Biden said in a statement that he was “very concerned” about the court’s decision “in light of the significant consequences that law has for women in Texas and around the country, and for the rule of law.”

He said that there is “so much more work to be done — in Texas, in Mississippi, and in many states around the country where women’s rights are currently under attack,” and that he will work with Congress to pass the Women’s Health Protection Act to safeguard abortion rights.

Friday’s decision returning the case to a lower court restarts a legal process that has seen the law remain in effect since Sept. 1, when the Supreme Court’s five most conservative members refused to step in to block it.

The same group — Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — turned down the renewed request.

But all except Thomas said a lawsuit could continue against a small group of Texas licensing officials who could have a role in enforcing the law, known as S.B. 8.

Texas calls S.B. 8 a “heartbeat” bill — it prohibits abortions after cardiac activity is noted in the embryo. It effectively has stopped the availability of abortion in Texas after six weeks, before many know they are pregnant. It has no exception for rape or incest.

S.B. 8’s unique enforcement regime leaves state officials largely on the sideline. Instead, it deputizes any member of the public to sue anyone who performs an abortion after the prohibited date or “aids and abets” someone getting the procedure, though not the patient.

The structure was intentional, to make it difficult procedurally for federal judges to stop the law before it took effect, even though its terms violate the Supreme Court’s precedents.

Chief Justice John G. Roberts Jr., writing for himself and the court’s three liberals, saw the law as an attack on the authority of the Supreme Court.

“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” Roberts wrote, adding that “the clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.”

Prior coverage: Supreme Court seems willing to allow challenge of Texas’s restrictive abortion law

Thomas, an avowed critic of the court’s abortion jurisprudence, wrote that he would not have allowed the lawsuit to continue.

Justice Sonia Sotomayor, on the other hand, issued a blistering rebuttal to her colleagues’ refusal to block the law.

“The Court should have put an end to this madness months ago, before S.B.8 first went into effect,” wrote Sotomayor, who was joined in the opinion by fellow liberal justices Stephen G. Breyer and Elena Kagan.

The court’s refusal to block the law “betrays not only the citizens of Texas, but also our constitutional system of government,” she wrote.

While the case over Texas’s law is procedural, the Supreme Court has signaled that it is ready to make dramatic changes in the judicial rules governing abortion rights. In debating a Mississippi law that bans almost all abortions after 15 weeks, some justices earlier this month indicated that they are open to overturning Roe v. Wade.

An abortion doctor from Kansas City, Mo., travels across state lines every month to provide care at clinics in the Midwest. (Video: Whitney Leaming, Alice Li/The Washington Post)

Marjorie Dannenfelser, president of the national antiabortion group Susan B. Anthony List, said in response to Friday’s decision, “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.”

“Meanwhile,” she added, “we anxiously await the Court’s decision in the [Mississippi] case in which the court is directly considering the constitutionality of laws that protect unborn children and mothers prior to viability.”

Access to abortion in Texas has been dramatically curtailed, and abortion providers have said that many who want the procedure have been forced to leave the state. They say the wait time for an abortion in neighboring Oklahoma is about four weeks because of the demand.

But Amy Hagstrom Miller, who as president and chief executive of Whole Woman’s Health and Whole Woman’s Health Alliance is the lead plaintiff in the case, said most pregnant people do not have the time or resources to leave the state.

She said abortion providers in Texas will now face a tough choice about whether to defy what they say is an unconstitutional law and face the prospect of an unlimited number of lawsuits, which if successful result in an award of at least $10,000.

“It’s sobering not to have the protection of the courts,” she said.

Abortion bans and sanctuary plans: States are preparing for a possible future without Roe v. Wade

The court’s decision, wrote Gorsuch, was a procedural one.

“In this preliminary posture, the ultimate merits question — whether S. B. 8 is consistent with the Federal Constitution — is not before the Court,” he wrote. “Nor is the wisdom of S. B. 8 as a matter of public policy.”

The Texas case raises complicated questions about legal procedure precisely because S.B. 8 was intended to avoid federal court review. Judges compelled to follow Supreme Court precedent have stopped other states from enacting similar bans on early abortions.

Texas officials said the challenges must come in Texas courts, but the law sets up obstacles that could delay a final decision for years.

To challenge the law, abortion providers targeted state judges and clerks — to keep them from accepting the civil suits — and Texas’s attorney general.

But the Supreme Court was unanimous that judges were not proper defendants. It voted 5 to 4 that the attorney general was not a proper party, and neither were county clerks.

The only ones who could be sued in an effort to stop the law, Gorsuch wrote, were certain executive licensing officials who have regulatory authority over the providers.

Hearron said that technically kept the lawsuit alive but narrowed the relief possible. The licensing officials are responsible for doctors, nurses and pharmacists. An injunction against them enforcing the law would have no effect on private citizens filing lawsuits against others, such as clinic receptionists, private abortion funding groups or even family members who help with securing an abortion. At oral argument, some justices referred to the $10,000 award as a “bounty.”

Roberts wrote that the larger point was the attempt by Texas to evade review, and he said that would be the case no matter the constitutional right at stake.

He quoted from an 1809 Supreme Court opinion that said attempts by state legislatures to annul judgments of the courts make a “mockery” of the Constitution.

“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” he added.

Future of abortion rights depends on a Supreme Court for which compromise seems elusive

There was a more barbed exchange in the opinions between Sotomayor and Gorsuch, who are congenial seatmates when the court is assembled at its mahogany bench.

Sotomayor compared Texas’s attempts to avoid federal judicial review to John C. Calhoun, “a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed.”

“S. B. 8 raises another challenge to federal supremacy, and by blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment,” she wrote.

“The Court’s delay in allowing this case to proceed has had catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas.”

Moreover, Sotomayor wrote, “the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree.” She noted that other states are considering laws based on the Texas model.

Gorsuch responded that Sotomayor was suggesting a “radical” enrichment of federal judicial power and that she did not “explain where her novel plan to overthrow this Court’s precedents and expand the equitable powers of federal courts would stop.”

He rejected Sotomayor’s complaint that the conservative majority has delayed the case while women in Texas have been deprived of rights.

“In fact, this case has received extraordinary solicitude at every turn,” Gorsuch wrote, including scheduling it for an expedited hearing and issuing an opinion “accompanied by three separate writings — all in fewer than 50 days.”

He said there were “many paths” available to abortion providers to challenge the law, including in state court. He noted that a state judge on Thursday had ruled on the law, finding parts of it unconstitutional.

The state is already appealing that decision, and it is unclear how long it would take to move through the Texas legal process.

Judge says Texas abortion law’s enforcement mechanism unconstitutional

The federal case presumably returns to U.S. District Judge Robert L. Pitman, who previously rejected a request from Texas officials to dismiss the lawsuit from abortion providers and scheduled a hearing to consider whether to block the six-week ban before it took effect.

But he was preempted by the U.S. Court of Appeals for the 5th Circuit, which called off the hearing pending further review and declined to halt the law.

In a separate proceeding brought by the Biden administration, Pitman characterized the six-week ban as an “unprecedented and aggressive scheme to deprive [Texas’s] citizens of a significant and well-established constitutional right,” adding that he would not “sanction one more day of this offensive deprivation of such an important right.”

But Pitman’s options are narrowed by the Supreme Court’s Friday decision.

The Supreme Court on Nov. 1 also reviewed the Biden administration case brought against the state of Texas. But the justices in an 8-to-1 vote Friday dismissed it in the court’s parlance as “improvidently granted.” Sotomayor dissented from that decision.

Anthony Coley, a spokesman for the Justice Department, said in a statement that the administration became involved in the case because Texas’s law “was specifically designed to deprive Americans of their constitutional rights while evading judicial review.” The department, Coley said, “will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”

The cases are Whole Woman’s Health v. Jackson and United States v. Texas.

Ann E. Marimow contributed to this report.

Roe v. Wade and abortion access in America

In June 2022 the Supreme Court struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens now? The legality of abortion is left to individual states. The Post is tracking states where abortion is banned or under threat, as well as Democratic-dominated states that moved to protect abortion rights enshrined in Roe v. Wade.

Abortion pills: Abortion advocates are concerned a Texas judge’s upcoming abortion pill ruling could halt over half the legal abortions carried out nationwide. Here’s how the ruling could impact access to the abortion pill mifepristone.

Post-Roe America: With Roe overturned, women who had secret abortions before Roe v. Wade felt compelled to speak out. Other women, who were and seeking abortions while living in states with strict abortion bans shared also shared their experience with The Post through calls, text messages and other documentation that supported their accounts. Here are photos and stories from across America since the reversal of Roe v. Wade.