WASHINGTON, D.C., USA — The Supreme Court has ruled that Texas abortion providers can sue over the state’s ban on most abortions, but the justices are allowing the law to remain in effect.
The court acted Friday, more than a month after hearing arguments over the law that makes abortion illegal after cardiac activity is detected in an embryo. That’s around six weeks, before some women even know they are pregnant. There are no exceptions for rape or incest.
The law has been in place since Sept. 1.
The outcome is at best only a partial victory for abortion providers. The same federal judge who already has once blocked the law almost certainly will be asked to do so again. But then his decision will be reviewed by the 5th U.S. Circuit Court of Appeals, which has twice voted to allow enforcement of the abortion ban.
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"If I were an abortion clinic, this opinion would not give me much comfort because although I can sue and maybe get some sort of ruling against licensing providers, it doesn't give me what I really need, which is protection against numerous lawsuits where the damages can be large and where you can never quite win," said University of Law professor Seth Chandler.
Justice Sonia Sotomayor blasted the law, writing, "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."
"Her concern is, 'Yeah, this looks like it's about abortion, but really, it's about how do you vindicate constitutional rights?" Chandler said.
The case could return to the justices and so far there have not been five votes on the nine-member court to put the law on hold while the legal fight plays out.
The court's conservative majority also seems likely to roll back abortion rights in a Mississippi case that was argued last week, although that decision is not expected until the spring.
The high court ruling came a day after a state court judge in Texas ruled that the law’s enforcement, which rewards lawsuits against violators by awarding judgments of $10,000, is unconstitutional yet left the law in place.
The court fight over the Texas law is focused on its unusual structure and whether it improperly limits how the law can be challenged in court. Texas lawmakers handed responsibility for enforcing the law to private citizens, rather than state officials.
The law authorizes lawsuits against clinics, doctors and anyone who “aids or abets” an abortion performed after cardiac activity is detected in the fetus. That’s usually around six weeks of pregnancy before some women even know they are pregnant.
RELATED: State judge declares Texas abortion law unconstitutional — but does not stop it from being enforced
The case raised a complex set of issues about who, if anyone, can sue over the law in federal court, the typical route for challenges to abortion restrictions. Indeed, federal courts routinely put a hold on similar laws, which rely on traditional enforcement by state and local authorities.
Another issue is whom to target with a court order that ostensibly tries to block the law. Under Supreme Court precedents, it’s not clear whether a federal court can restrain the actions of state court judges who would hear lawsuits filed against abortion providers, court clerks who would be charged with accepting the filings or anyone who might some day want to file a lawsuit.
The Texas law was specifically designed to put obstacles in the way of legal challenges, and so far it has worked.
Since it took effect in September, the law has imposed the most restrictive abortion curbs in the nation since the Supreme Court first declared a woman’s right to an abortion in its 1973 Roe v. Wade decision.
In its first month of operation, a study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% compared with September 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Evaluation Project.
Texas residents who left the state seeking an abortion also have had to travel well beyond neighboring states, where clinics cannot keep up with the increase in patients from Texas, according to a separate study by the Guttmacher Institute.
The justices declined to block the law once before, voting 5-4 in September to let it take effect. At the time, the three appointees of former President Donald Trump and two other conservative colleagues formed the majority.
The court's conservative majority also seems likely to roll back abortion rights in a Mississippi case that was argued last week, although that decision is not expected until the spring.
What is the Texas abortion law?
The Texas law bans abortion once cardiac activity is detected in the fetus, often around six weeks, before some women know they're pregnant. It also makes no exceptions for rape or incest.
What makes this law different is rather than having officials responsible for enforcing the law, private citizens can now sue abortion providers and anyone involved in facilitating abortions.
That could include someone who drove a woman to a clinic. And under the law, anyone who successfully sues another person would be entitled to at least $10,000.
Timeline of controversy behind Texas abortion law
Texas' new abortion law has been an uphill battle since the day it went into effect, which was Sept. 1.
In the following days, Texas abortion providers went to work to stop anti-abortion groups and citizens from suing clinics that provided abortions.
Sept. 9: U.S. Justice Department sues Texas over the abortion law, citing the law was invalid and "in open defiance of the Constitution."
Sept. 13: A Travis County district court grants a temporary injunction, stopping anti-abortion group Texas Right to Life from being able to sue Planned Parenthood.
Oct. 6: A federal judge orders Texas to suspend the law. Some Texas clinics quickly resume procedures.
Oct. 8: A federal appeals court allows Texas to resume banning most abortions. The law is reinstated.
Oct. 14: A federal appeals court rejects the Biden Administration's latest attempts to undo the Texas abortion law, pushing the law closer to the Supreme Court.
Oct. 18: The Biden Administration asks the Supreme Court to block the law.
Oct. 21: State of Texas files a response to the Biden Administration's call on the Supreme Court to block the law, urging the court to leave the law in place.
Oct. 22: The Supreme Court leaves the law in place but agrees to hear two arguments — who can sue to challenge the law and whether a federal court can effectively block the law.
Nov. 1: Supreme Court hears the two arguments over Texas abortion law.
Dec. 10. The U.S. Supreme Court rules that Texas abortion providers can sue over the state’s ban on most abortions, but the justices allow the law to remain in effect. The ruling from the nation's highest court comes weeks after justices heard arguments from Texas officials and the U.S. Department of Justice, which challenged the law, along with a group of abortion providers.