Abortion providers get Supreme Court backing to fight Texas ban

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Without tacking the merits of the law banning abortions upon the detection of a fetal heartbeat, the high court looked only at what state actors are proper defendants to the litigation. This article is originialy published in Court House News.

The Supreme Court authorized Texas abortion providers on Friday to proceed in their challenge of the state’s near-total ban on abortions, a rule that will remain in place while th case proceeds.

Issuing their decision just over a month after oral arguments, the justices still managed a split on somewhat idealogical lines. Justice Neil Gorsuch wrote the lead opinion, joined by Justices Samuel Alito, Brett Kavanaugh and Amy Coney Barrett. The liberal wing of the court joined an opinion concurring in judgment but dissenting in part by Chief Justice John Roberts. Justice Clarence Thomas issued his own partial dissent.

The narrow ruling allows the abortion providers to continue their suit against defendants with authority over medical licenses but rejects their effort against judges and clerks of the state court system.

“Eight justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners,” Gorsuch wrote.

The opinion finds that these defendants fall within the scope of Ex parte Young because they are officials who must take action against anyone found to have violates Texas’ Health and Safety Code.

“It appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity,” the decision states. “Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8.”

Gorsuch called the abortion providers’ suit against state judges and clerks “troubling,” meanwhile, because of the lack of limiting principles.

“If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law,” the Trump appointee asked, “what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws?”

While the decision lets abortion providers continue their challenge to the ban, it does not stop enforcement of the law, which still remains in effect.

The case by the abortion providers was consolidated for arguments with a separate challenge by the government after the Fifth Circuit blocked an injunction on the law in a 2-1 ruling. Though the court agreed to hear arguments in both challenges, it refused to reinstate the injunction. In doing so, it specified that arguments would focus not on the constitutionality of the law but rather issues brought about by the unique enforcement mechanism that has allowed it to evade judicial review.

In a separate ruling Friday, the justices dismissed the appeal from the Department of Justice, which sought to stop enforcement of the ban. Justice Sonia Sotomayor was the lone dissenter from this opinion, and she authored a partial dissent in the case that involved the abortion providers.

“The court should have put an end to this madness months ago, before S. B. 8 first went into effect,” the Obama appointee wrote, joined by Justices Stephen Breyer and Elena Kagan. “It failed to do so then, and it fails again today.”

All three justices joined with Roberts meanwhile to urge that the trial judge back in Texas act quickly on the case.

“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay,” Roberts wrote.

Roberts said the purpose of Texas’ law is to overturn the court’s rulings.

“The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” the Bush appointee wrote. “It is, however, a basic principle that the Constitution is the ‘fundamental and paramount law of the nation,’ and ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’”

In contrast to the Roberts partial dissent, Thomas wrote that he would have ruled against the providers entirely and dismissed their case for lack of subject-matter jurisdiction.

“There is no freestanding constitutional right to pre-enforcement review in federal court,” the Bush appointee wrote.

Thomas said the abortion providers could have sought a “negative injunction,” which permits a challenger to take up a defense that would otherwise be available in the state’s enforcement proceedings.

Sotomayor warned on the other hand that limiting the relief available to the providers marks a “dangerous departure” from the court’s precedents governing the state’s enforcement of a law that violates constitutional rights.

“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,” Sotomayor wrote. “The court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

Roberts hits on the same point in his opinion, saying that if state legislatures are able to destroy constitutional rights, “the constitution itself becomes a solemn mockery.”

“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote.

Gorsuch denied the insinuation from his dissenting colleagues that the court is not defending the constitution.

That rhetoric bears no relation to reality.

Gorsuch writes

For the abortion providers, Gorsuch’s ruling is a hollow win.

“Texans deserve better than this,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. “This ban will have lasting effects on Texan communities for decades to come. We’ve had to turn hundreds of patients away since this ban took effect, and there is no end in sight. For nearly 50 years, the Supreme Court has said that abortion is protected by our Constitution, yet they are allowing Texans to be denied that right. This is not okay.”

Codified as Senate Bill 8, the Texas law bans all abortions after the detection of fetal cardiac activity and before most women know they are pregnant. Significantly for the litigation here, SB 8 gives private citizens authority to sue anyone who aids in an illegal abortion instead of government officials who would normally enforce such laws.

This has complicated pre-enforcement challenges to the law — something that has thwarted similar laws that look to nullify precedent under Roe v. Wade and the 1992 case Planned Parenthood v. Casey, which implemented what is known as a viability analysis focused on laws that ban abortions before the point when a fetus can survive outside the womb, usually at about 23 or 24 weeks in utero.

Fetal cardiac activity occurs approximately six weeks after a woman’s last menstrual period and two weeks after a woman’s first missed period. SB 8 contains no exceptions for cases of rape or incest.

This unique enforcement mechanism was a key sticking point during oral arguments before the court as it would create a precedent that allowed other states to eviscerate constitutional rights of their choosing and essentially disempower courts to challenge laws on their merits.

Nancy Northup, president and CEO of the Center for Reproductive Rights, said the court was allowing a “bounty-hunter scheme” to continue.

“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,” Northup said in a statement. “The Court has abandoned its duty to ensure that states do not defy its decisions.”

Marc Hearron, senior counsel at the center, called it a “dark day” for patients, physicians, abortion providers, and constitutional rights as a whole. He warned that other states will likely see copycat laws similar to SB 8 and that every constitutional right is now at risk.

“While SB 8 is about abortion, this private enforcement scheme implicates every other constitutional right. … If a state can prohibit the exercise of any constitutional right that’s disfavored within that state and get around federal court review by allowing private citizens to sue someone for exercising that constitutional right then it’s hard to say where this scheme ends,” Hearron said on a call with reporters following the ruling.

As attorney for the abortion providers, Hearron stressed that further proceedings in federal court can only do so much because an injunction against the licensing officials will not thwart the “bounty-hunting scheme.”

The abortion providers are also pursuing another case concerning SB 8 against Texas Right to Life and received a win from a district court in that case on Thursday. If that case were to make it to the Texas Supreme Court, abortion providers could receive a ruling that would bind state courts in Texas.

The Texas attorney general’s office did not respond to requests for comment following the ruling.

President Joe Biden released a statement on the ruling reiterating his support for Roe and expressing concern over the Supreme Court’s ruling. Biden said he would work with Congress to pass the Women’s Health Protection Act to protect women’s rights.

“While it is encouraging that the Court ruled that part of the providers’ lawsuit may continue, this ruling reinforces that there is so much more work to be done—in Texas, in Mississippi, and in many states around the country where women’s rights are currently under attack,” he said. “I will continue to work with Congress to pass the Women’s Health Protection Act. We have more work to do, but I will always stand with women to protect and defend their long-recognized, constitutional right under Roe v. Wade.”

Justice Department spokesman Anthony Coley said the government isn’t giving up.

“The Department of Justice brought suit against Texas Senate Bill 8 because the law was specifically designed to deprive Americans of their constitutional rights while evading judicial review,” he said. “The department will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”

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