Mixed results in Supreme Court rulings on Texas abortion law

The U.S. Supreme Court on Friday once again declined to block the Texas “heartbeat” law protecting most babies from abortion in the state, but litigation against the law will continue to play out in lower courts in the coming days. In a pair of orders, the justices ruled only on technical aspects of a closely watched legal battle with widespread implications for abortion law, sidestepping for now the question of whether they consider the law in Texas, which bans abortions after about six weeks of gestation, to be constitutional.

The rulings do not represent a total win for either pro-life or pro-abortion supporters, although it does hobble pro-abortion attempts to block the Texas law.

While some pro-life groups are celebrating that the Texas law continues to remain in effect and protect babies, abortion providers in Texas will still be allowed to continue challenging the law in court. But the justices restricted the scope of state officials they said abortion providers could sue. That move suggests the court is wary of the law’s novel enforcement mechanism, which allows private citizens to file lawsuits against abortionists and others who help women obtain abortions after their babies have heartbeats.

Up to this point, the lawsuits have faced a complicated but quick journey through the courts.

In July, before the Texas heartbeat law took effect, abortion providers sued several Texas state officials to prevent them from participating in any private enforcement lawsuits under the law, a move meant to effectively block any enforcement. A district court ruled in favor of the abortion providers, but the defendants appealed. The Supreme Court declined to block the Texas law while litigation played out, and it heard oral arguments in the case on Nov. 1.

In a related case that also came before the high court, the Department of Justice sued Texas on the grounds that the heartbeat law was unconstitutional, claiming the private enforcement mechanism was a tactic to avoid court review. In a brief, one-page order on Friday, the court dismissed the U.S. government’s request to reinstate a district court ruling that would have blocked the law.

In an opinion written by Justice Neil Gorsuch for the first case, a majority of justices determined the abortion providers could continue their litigation in the lower courts. But they dismissed a Texas clerk, judge, and Attorney General Ken Paxton as defendants in the lawsuit, saying such officials could no longer be sued over the law. (They also dismissed the single private citizen named as a defendant.) They allowed the lawsuit to proceed against remaining defendants, however, including the head of the Texas health department and state officials responsible for medical licensing. Gorsuch noted that the abortion providers “have identified provisions of state law that appear to impose a duty on the licensing-official defendants to bring disciplinary actions against them if they violate [the law].”

Lawyers for the abortion groups complained the outcome undercuts their efforts to block the Texas law. Marc Hearron, senior counsel for the Center for Reproductive Rights, told NPR that future attempts to block the remaining defendants from enforcing the law would not prevent private citizens from still filing lawsuits.

Despite allowing the lawsuit to continue, Gorsuch clarified that the court’s decision didn’t tackle the question of the constitutionality of the heartbeat law, known as Senate Bill 8.

“I think in the end, [the justices] were careful to avoid any appearance that they were providing an opinion on Roe’s ultimate outcome while at the same time identifying state officers in Texas who would be responsible for enforcing S.B. 8,” said Steve Aden, chief legal officer for Americans United for Life.

In a minority opinion penned by Chief Justice John Roberts and joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the chief justice argued the lawsuit should have been allowed to continue against most of the original defendants. In a statement that seemed to suggest his view on the constitutionality question, Roberts also wrote that S.B. 8 contradicted Roe v. Wade and Planned Parenthood v. Casey and “has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.”

Roberts urged the lower court to “resolve this litigation and enter appropriate relief without delay.”

In a separate opinion for herself, Breyer, and Kagan, Sotomayor complained that the court “should have put an end to this madness months ago, before S.B. 8 first went into effect.”

In a statement, Texas Right to Life applauded the court’s decision to uphold the heartbeat law for now but took issue with the decision to allow litigation to continue. “The abortion industry cannot prove judicial involvement is merited since the named defendants are not authorized to enforce the law,” the group said, referring to how the law puts enforcement in the hands of private citizens, not state officials.

The group acknowledged the ruling could indicate the justices are skeptical of the law’s private enforcement mechanism. But Texas Right to Life pointed to the other big abortion case the justices are currently weighing, Dobbs v. Jackson, which challenges a Mississippi law that prevents abortions after 15 weeks of pregnancy.

“Texas Right to Life is hopeful that the justices will recognize the grave legal and ethical errors of Roe and restore states’ ability to protect preborn children,” the group said.