The U.S. Supreme Court ruled Friday to allow federal court challenges against Texas’ extreme and unusual abortion ban, but also decided to allow the law to remain in effect while those challenges are considered.
Chief Justice John Roberts and the court’s three liberal justices encouraged lower courts to act swiftly, writing, “Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay.”
The case will now be sent back to a federal district court in Texas, which already decided to block enforcement of the law once. That move was reversed by an appellate court, and the law has been in effect since September.
In a splintered 5-4 opinion, the court also decided that abortion providers may sue some state officials over the law, such as those with authority over medical licenses, but not others, such as judges, court clerks and attorneys general.
Roberts and the three liberal justices dissented over who could be sued, arguing that court clerks and attorneys general are in fact proper defendants. “It is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote.
Justice Sonia Sotomayor also criticized the majority’s decision to allow the law to remain in effect for now, writing, “The Court should have put an end to this madness months ago.”
“It failed to do so then, and it fails again today,” she wrote.
The court’s verdicts come one week after its members signaled willingness to overhaul the federal government’s stance on abortion in a separate case centering on a Mississippi abortion ban. On Dec. 1, the court heard arguments in that case, which reproductive health advocates fear will result in effectively undoing Roe v. Wade, the 1973 Supreme Court decision that permitted abortion nationwide.
Key votes on Friday’s decisions were cast by conservative justices Brett Kavanaugh and Amy Coney Barrett, who both previously voted to allow the law to go into effect but signaled some apprehension about the law’s potential to set a wider precedent during a Nov. 1 hearing.
At that hearing, abortion providers and the Justice Department aired their grievances with the Texas legislation, which effectively bans abortion at six weeks of pregnancy. At issue before the justices was the law’s enforcement mechanism, which deputizes private citizens, not the state, to enforce it and offers a $10,000 bounty to anyone who successfully sues someone for “aiding or abetting” patients violating the law. It makes no exceptions for rape or incest.
That element of the law has successfully shielded the state from lawsuits over the ban and allowed it to remain in effect despite clear conflict with abortion protections established by Roe v. Wade.
It’s a “loophole that’s been exploited,” Kavanaugh said at the Nov. 1 hearing, pointing to concerns that the same mechanism could be used to shield gun control measures from lawsuits.
Barrett raised concerns that the law prevented abortion providers from exercising a “full constitutional defense.”
During the months the law has been in effect, Texas patients seeking abortions more than six weeks into term ― a period when many women do not even know they’re pregnant ― have been forced to travel out of the state for care, often spending hundreds of dollars on transportation, accommodations and other travel costs to have the procedure.
The law’s success, however, has prompted other states to introduce copycat bills with similar enforcement language.
This week, Alabama became the fourth state to consider similar abortion ban legislation, following Arkansas, Ohio and Florida.