The Supreme Court has ruled that Texas abortion providers can sue the state over its ban on most abortions, but the justices have left the law in place.
The court issued its decision on Friday, more than a month after hearing arguments about the law that makes abortion illegal if cardiac activity is detected in an embryo. That’s six weeks before some women even realize they’re pregnant. There are no exceptions for rape or incestuous relationships. The law has been in effect since September 1.
At best, the outcome is a partial victory for abortion providers. The same federal judge who previously blocked the law will almost certainly be asked to do so again. However, his decision will be reviewed by the 5th U.S. Circuit Court of Appeals, which has twice voted to allow the abortion ban to be enforced. The case could be remanded to the justices, and there haven’t been five votes on the nine-member court to put the law on hold while the legal battle plays out.
The court’s conservative majority also appears poised to limit abortion rights in a Mississippi case heard last week, though a decision is not expected until the spring.
The high court decision came a day after a Texas state court judge ruled that the law’s enforcement, which rewards lawsuits against violators with $10,000 judgments, is unconstitutional but left the law in place.
The Texas law’s court battle is centered on its unusual structure and whether it improperly limits how the law can be challenged in court. Texas lawmakers delegated responsibility for law enforcement to private citizens rather than state officials. The law allows for lawsuits against clinics, doctors, and anyone who “aides or abets” an abortion performed after cardiac activity in the fetus is detected. That is usually six weeks of pregnancy before some women even realize they are pregnant.
The case raised a slew of questions about who, if anyone, can sue over the law in federal court, which is the usual route for challenging abortion restrictions. Indeed, similar laws that rely on traditional enforcement by state and local authorities are routinely halted by federal courts.
Another issue is deciding who to target with a court order that purports to block the law. According to Supreme Court precedents, it is unclear whether a federal court can enjoin the actions of state court judges who would hear lawsuits filed against abortion providers, court clerks who would be tasked with accepting the filings, or anyone else who might someday want to file a lawsuit. The Texas law was specifically designed to obstruct legal challenges, and it has so far worked.
Since it went into effect in September, the law has imposed the most stringent abortion restrictions in the country since the Supreme Court first declared a woman’s right to an abortion in its Roe v. Wade decision in 1973.
A study published by researchers at the University of Texas found that the number of abortions in Texas fell by half in its first month of operation, compared to September 2020. According to the Texas Policy Evaluation Project, the study was based on data from 19 of the state’s 24 abortion clinics.
According to a separate study by the Guttmacher Institute, Texas residents who left the state in search of an abortion have had to travel far beyond neighboring states, where clinics are unable to keep up with the increase in patients from Texas. 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.
