December 13, 2021
On Friday, December 10, the Supreme Court allowed a challenge to a Texas abortion law that bans most abortions in the state after about six weeks of pregnancy—ruling, however, that abortion providers in the state may sue some state officials in federal court, despite the procedural hurdles imposed by the unusual structure of the law, reports The New York Times.
The development was both a victory for and a disappointment to supporters of abortion rights, who had hoped that the justices would reverse course from the September 1 ruling that had allowed the law to go into effect—causing clinics in the state to curtail performing the procedure and forcing many women seeking abortions to travel out of state.
The decision in the Texas case came less than two weeks after the court heard a direct challenge to the right to abortion established in 1973 in Roe v. Wade, in a case about a Mississippi law that bans most abortions after 15 weeks. Roe prohibits states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb—or about 23 to 24 weeks into a pregnancy.
The court’s six-member conservative majority seemed prepared to uphold the Mississippi law, and several justices indicated that they would vote to overrule Roe outright. A decision in the case is not expected until late June.
The Texas law flouts Roe’s viability line by barring abortions once fetal cardiac activity can be detected, usually around six weeks.
The challenges to the Texas law focused not on the law’s constitutionality but on whether the law could be challenged in court by either abortion providers in the state or the federal government. The cases provided the court with an opportunity to revisit its earlier decision allowing the law to go into effect before the justices had grappled with its constitutionality or settled the question of how it could be challenged.
The Texas law, known as Senate Bill 8, has unusual features: It makes no exceptions for pregnancies resulting from incest or rape, bars state officials from enforcing it, and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.
The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure or drive them to it are all potential defendants. Plaintiffs—who do not need to live in Texas, have any connection to the abortion or show any injury from it—are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.
The majority opinion, issued just before midnight on September 1, was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.
Research contact: @nytimes
