Supreme Court allows abortion providers to sue over Texas law

State & Regional

The Supreme Court is seen in Washington, Wednesday evening, June 30, 2021, as final decisions of the term are anticipated. (AP Photo/J. Scott Applewhite)

(The Hill) — The Supreme Court on Friday cleared the way for abortion providers to pursue a federal lawsuit challenging a restrictive Texas law that bans abortion after six weeks of pregnancy.

The ruling did not deal directly with the ban’s legality, and Texas’s law remains intact for now. Rather, the justices determined that federal courts have the power to review their legal challenge against some of the named defendants.

In a separate opinion, the justices dismissed a similar challenge brought by the Department of Justice.

In an 8-1 opinion by Justice Neil Gorsuch, the majority handed abortion providers a modest win whose practical impact was not immediately certain. 

The ruling allows providers to pursue claims in lower federal courts against state licensing officials that, if successful, could prevent these officials from seeking to enforce violations of the abortion ban. 

But some legal experts said the ruling had given Texas a roadmap for blocking these lawsuits.

“If Texas were to revise the statute to make clear that the licensing officials play absolutely no role in implementing the law, then no one in Texas could be sued to enjoin it,” said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, who called Texas’s abortion ban “blatantly unconstitutional.”

The majority’s ruling dismissed the abortion providers’ suits against Texas’s attorney general, as well as a number of state court judges and clerks and a private citizen.

Legal challenges to the Texas law have been ensnared in thorny questions related to the law’s unique legislative design, which critics have likened to a “bounty” system.

S.B. 8 authorizes citizens to file private lawsuits against those who perform, aid or abet an abortion after fetal cardiac activity is detected, typically around six weeks of pregnancy — before most women know they are pregnant. Successful suits under S.B. 8, which contains no exceptions for rape or incest, fetch at least $10,000.

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