The Supreme Court Won’t Halt Texas’s Abortion Ban While The Justices Decide If Anyone Can Sue

The court will hear arguments on Nov. 1 on whether the Justice Department and abortion providers can sue Texas at all.

WASHINGTON — The US Supreme Court will allow Texas’s six-week abortion ban to remain in effect for now, with a majority of the justices rejecting the Justice Department’s push to immediately pause enforcement of the law while constitutional challenges work through the lower courts.

The order, which Justice Sonia Sotomayor dissented from, leaves intact a decision earlier this month by a federal appeals court that revived the law, SB 8, two days after a judge in Austin blocked it. It means that healthcare providers in Texas will remain barred from performing nearly all abortions, at the risk of facing a civil lawsuit carrying thousands of dollars in potential penalties; anyone suspected of helping a pregnant person obtain an abortion can also be sued.

The court will hear arguments on Nov. 1 on the question of whether the Justice Department and abortion providers can sue Texas and whether a lower court can enter an order that blocks state court judges and clerks, private individuals, and any other state actors from taking steps to enforce the law.

The justices did not take up the question of whether SB 8 is constitutional, although these cases could shed light on how they’re thinking about the question and more broadly about the court’s role in protecting abortion access nationwide. In December, the court is set to hear arguments in a separate case about whether the justices should revisit longstanding precedent that prohibits states from passing laws that ban abortion before a fetus is considered “viable” — meaning it can survive outside the womb — a point that typically occurs around week 24 of a pregnancy.

Abortion providers and the DOJ had filed separate challenges to the law, and each petitioned the Supreme Court to step in after facing setbacks before the US Court of Appeals for the 5th Circuit on the issue of whether they could bring constitutional challenges in the first place. The Justice Department had also asked the justices to reinstate the injunction that blocked enforcement of the law in the meantime.

The court doesn’t specify in these types of orders how individual justices voted, and Sotomayor was the only member of the court to note her dissent to the court’s decision to leave SB 8 on the books. She wrote that she agreed with her colleagues that the court should hear the case right away but that the promise of some future action was “cold comfort” to pregnant people in Texas who needed abortions now.

“These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether. Because every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent,” Sotomayor wrote.

SB 8 bans nearly all abortions in Texas 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 state 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 at that stage is detecting electrical activity.

Texas adopted a novel approach to enforcing its abortion ban that state lawmakers and anti-abortion advocates hoped would avoid the swift court losses that other states have faced when they have attempted to pass early-term bans. Supreme Court precedent generally draws a line at banning abortions before a fetus can survive outside of the womb, usually at around week 24 of pregnancy at the earliest.

Instead of dictating that law enforcement or health officials enforce the law, SB 8 leaves that task to private citizens, who are empowered to bring civil claims against anyone they believe has violated the ban. Unlike in many other types of civil cases, the person bringing an SB 8 lawsuit doesn’t need any direct connection to the person they are suing. Plaintiffs who win could claim damages of $10,000 or more plus their legal expenses — and if they lose, they won’t be on the hook for paying the legal costs of whomever they sued.

SB 8 took effect on Sept. 1 after the Supreme Court refused to step in to stop it. A coalition of abortion providers had sued to challenge the law after it was signed earlier this year by Gov. Greg Abbott. Before US District Judge Robert Pitman could rule on whether to grant the injunction the providers had asked for, the 5th Circuit paused the entire case. Without reaching the question of whether the ban was constitutional, a three-judge panel held that the court first had to decide whether anyone could be sued over the law, given its unusual enforcement structure.

The abortion providers immediately petitioned the Supreme Court to stop the law from taking effect or at least undo the 5th Circuit order and let Pitman go forward. The court took no action by midnight on Sept. 1 and then released a 5–4 order 24 hours later explaining that a majority of justices agreed with the 5th Circuit that the abortion providers failed to show they’d definitely win on the question of whether the defendants they’d named — state court judges and clerks who would process SB 8 lawsuits, state regulatory officials, and one anti-abortion activist who had vowed to enforce the ban — could be sued at all.

Less than two weeks after the law took effect — with the abortion providers’ case still paused before the 5th Circuit — the Justice Department took Texas to court. The case was also assigned to Pitman, and this time he was able to go ahead with considering the DOJ’s request for a temporary injunction. On Oct. 6, Pitman granted the injunction, calling SB 8 “flagrantly unconstitutional” and concluding that Texas could be sued because anyone who sued under the law was enforcing the state’s interests.

Texas petitioned the 5th Circuit to step in, while at least some providers resumed performing abortion procedures. The appeals court ultimately did step in, staying Pitman’s order and allowing the law to go back into effect on Oct. 8. The Justice Department then petitioned the Supreme Court.

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