The Supreme Court Revived A Constitutional Challenge To Texas’s Six-Week Abortion Ban

The justices declined to let the Justice Department go ahead with its suit, however.

WASHINGTON — Texas cannot escape a constitutional challenge to its six-week abortion ban, the US Supreme Court ruled Friday, reviving a fight over the strictest antiabortion law in the country months after a majority of justices refused to stop it from taking effect.

A majority of justices concluded that abortion providers who had sued the state over the law, SB 8, could proceed with at least part of their case. The court did not reach the core question of whether the Texas law is or is not constitutional. In a separate order, the court rejected an effort by the Justice Department to press ahead with the federal government’s effort to challenge the law in court.

Although the ruling is a win for the reproductive rights advocates who argued Texas couldn’t avoid a broad constitutional challenge in federal court, the law — which has effectively halted most abortions statewide — will remain in effect for now. The case will go back down to a federal district judge in Austin to consider arguments about whether the law is unconstitutional and, if so, what type of order to fashion to address that. Any future rulings at that level could be appealed and, at least in theory, someday wind up back before the Supreme Court.

Clinic operators and reproductive rights groups expressed concern that the majority opinion left them with only a "narrow" path forward to challenge SB 8 and any copycat laws, and that it wasn't clear that a federal court could craft an order that blocked the law in its entirety — that is, an order that stopped people from filing the type of "bounty-hunter" suits against abortion providers and people who may have helped a pregnant person obtain the procedure.

"It’s stunning that the Supreme Court has essentially said that federal courts cannot stop this bounty-hunter scheme enacted to blatantly deny Texans their constitutional right to abortion. The Court has abandoned its duty to ensure that states do not defy its decisions. For 100 days now, this 6-week ban has been in effect, and today’s ruling means there is no end in sight. Pregnant people will continue to live in a state of panic and uncertainty," Nancy Northrup, president and CEO of the Center for Reproductive Rights, one of the organizations involved in the litigation, said in a statement.

The court’s decision came a week after the justices heard arguments in a case out of Mississippi that throws into doubt decades of court precedent that have protected the right to an abortion during the earlier phases of pregnancy. The outcome of that case will affect any future legal fight over SB 8 — whether or not the court upends the core of Roe v. Wade and other landmark reproductive rights decisions will affect Texas’s future chances of defending its law in court.

Parts of Friday’s decision split the court into different factions, but, critically, the justices voted 8–1 that the abortion providers could at a minimum sue state licensing officials who were responsible for enforcing elements of SB 8. Justice Clarence Thomas was the only member of the court to dissent from that conclusion and wrote that he would have tossed out the case entirely. Justice Neil Gorsuch wrote the majority opinion.

Justice Sonia Sotomayor, joined by the two other members of the court’s liberal wing, Justices Stephen Breyer and Elena Kagan, wrote separately to make clear that they disagreed with the majority’s refusal to halt the law outright and would have widened the pool of possible state defendants that clinics could name in order to sue over the law. She warned that the majority’s narrower ruling would give other states a roadmap for trying to craft similar abortion bans in the future in the hopes of succeeding where Texas failed to avoid a legal challenge.

“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today,” Sotomayor wrote. “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

As for the Justice Department's lawsuit against Texas, a majority of justices voted to simply refuse to disturb an appeals court order that had put that case on hold and allowed SB 8 to remain in effect. The federal government won the first round of that case, with a district court judge in Austin granting an injunction that stopped enforcement of the law, but the US Court of Appeals for the Fifth Circuit stepped in two days later to undo that while Texas pursued an appeal. During arguments before the Supreme Court, several justices expressed skepticism that the US government had authority to sue a state under these circumstances, especially if the court ended up allowing private parties — that is, the abortion providers — to sue. Sotomayor was the only justice to note a dissent from the court's decision.

Justice Department spokesperson Anthony Coley said in a statement that DOJ "will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution."

SB 8 took effect on Sept. 1. It bans nearly all abortions after fetal cardiac activity can be detected, which is typically around the sixth week of pregnancy. Pregnancy terms are counted from the first day of a person’s most recent period, so six weeks is typically two weeks after a missed period, which is when many people first realize they might be pregnant. Early-term abortion bans are often referred to as “heartbeat” laws, but that term is misleading because a fetus’s heart valves haven’t formed at that point; an ultrasound detects electrical activity.

The justices initially declined to get involved in a fight over the law, a move that meant the law could take effect. They later agreed to take up two cases — one that was filed by a coalition of abortion providers before it took effect, and one filed by the Justice Department shortly after in September.

Neither case was far enough along for the Supreme Court to grapple with the core issue of whether SB 8 — specifically, the six-week abortion ban — is constitutional. Instead, the justices took up a critical threshold question: whether anyone could bring a lawsuit challenging the constitutionality of the law at all.

Unlike other state abortion bans that failed to survive legal challenges, Texas deputized private citizens to enforce SB 8 by filing civil lawsuits against abortion providers or anyone else suspected of helping a pregnant person obtain the procedure. Texas lawmakers and anti-abortion advocates hoped the novel structure of the law would avoid the swift court losses that other Republican-led states faced when they attempted to pass early-term bans enforced more directly by state actors like prosecutors or health officials.

Supreme Court precedent historically has drawn a line at banning abortions before a fetus is considered “viable” — meaning it can survive outside of the womb — a milestone that usually occurs at around week 24 of pregnancy at the earliest. That viability standard is what’s at issue in the Mississippi case that the court heard this month.

Texas’s position was that there was no state enforcer of SB 8, so the only way to contest the law was for a provider or someone else who had helped a pregnant person obtain an abortion to wait to be sued, and then challenge the law as a defense. During arguments in November, several members of the court’s conservative majority asked questions and made comments that suggested they weren’t convinced yet that Texas had found a way around a more sweeping constitutional challenge.

Chief Justice John Roberts Jr., joined by the court’s liberal wing, wrote that in addition to allowing the abortion providers to sue the state licensing officials, they believed that other state actors played a role in enforcing the law and could be sued as well, including Texas Attorney General Ken Paxton and state court clerks who were responsible for processing any civil enforcement suits brought under SB 8. Roberts did not join Sotomayor’s separate, stronger critique of the majority’s handling of the case.

"My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue," Sotomayor wrote. "The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them."

In the majority opinion, Gorsuch responded to Sotomayor, writing that, "those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments."