Supreme Court Leaves Texas Abortion Law In Effect, but Allows Providers to Challenge It


WASHINGTON — A divided Supreme Court refused Friday to block a Texas law that has banned most abortions there, but opened the door narrowly for abortion providers to challenge it before a federal judge.

The court's conservative majority said abortion providers may sue state licensing officials, but not the state judges and clerks who are charged with handling lawsuits spurred by the law.

Chief Justice John G. Roberts Jr. and the three liberals dissented in part, saying the court should have gone further to allow challenges to the law. Roberts said Texas sought to "nullify this court's rulings" that held women have a right to choose abortion.

In a related case, the court tossed out a lawsuit brought by the Biden administration that sought to halt the Texas law known as SB 8. It makes abortions illegal after six weeks and authorizes private lawsuits against doctors who violate it.

Justice Sonia Sotomayor, speaking in dissent, said the "court  should have put an end to this madness months ago, before SB 8 first went into effect. It failed to do so then, and it fails again today."

The 5-4 split within the court may well reflect the divide over whether to overturn Roe vs. Wade and the right to abortion. During arguments last week in a Mississippi case, the five conservatives sounded ready to overturn the right to abortion.

In early September, the same five justices stood aside and allowed the Texas law to take effect, even though it deprived pregnant women of their right to choose abortion. They included Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, President Trump's three appointees.

At issue in the Texas case was whether a federal judge could block the state's abortion law as unconstitutional. Because of the unusual enforcement mechanism of the law, it was not clear who could be sued. The law was not enforced by state officials, but instead through private lawsuits.

Speaking for the fractured court on Friday, Gorsuch said abortion providers should pursue their challenges in the Texas state courts.

"This court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court," he wrote in Whole Woman's Health vs. Jackson.

When the justices heard arguments last month in the Texas case, Kavanaugh and Barrett sounded as though they would vote to block the law, or at least clear the way for a successful challenge. But instead, they joined with the more conservative justices to allow only the most narrow of challenges.

This was similar to the court's approach in September.

In that earlier order, the court said the law raised "complex and novel ... procedural questions" because officials had no direct role in enforcing the ban on most abortions.

Their decision drew sharp criticism and may well have prompted at least some justices to reconsider the matter. To many, it appeared the new conservative majority had allowed the nation's largest red state to ignore nearly 50 years of court precedents that held abortion was a constitutional right.

Responding to their initial rebuff, lawyers for the abortion providers went back to the high court and urged the justices to fast-track a hearing on the procedural questions raised by a law that is enforced through what they called a private bounty scheme.

The court heard arguments from both sides on Nov. 1, when it appeared most of the justices were prepared to block the law. Kavanaugh said gun rights and religious liberty could be put in doubt if the court allowed states to use Texas-style lawsuits as a means to nullify constitutional rights.