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Supreme Court refuses to block Texas abortion law as legal fights move forward

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An anti-abortion activist rallies outside the Supreme Court on Nov. 1, as arguments about Texas' abortion law begin. The court has allowed the law to remain in place for now.
Jacquelyn Martin, AP

An anti-abortion activist rallies outside the Supreme Court on Nov. 1, as arguments about Texas' abortion law begin. The court has allowed the law to remain in place for now.

Updated December 10, 2021 at 11:30 AM ET

The U.S. Supreme Court allowed abortion providers to challenge the Texas law that essentially bans abortions after about six weeks. Separately, the court dismissed as improvidently granted the Justice Department's challenge to the law.

In effect, the justices allowed the abortion providers' challenges to go ahead against Texas' licensing officials – but not anyone else. The law remains in place as these challenges play out.

The vote in the case — Whole Woman's Health v. Jackson — was 8-1, with only Justice Clarence Thomas dissenting. But Chief Justice John Roberts and the three liberals all thought that other state officials could be sued.

Roberts wrote: "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."

In the second case — U.S. v. Texas — the vote was also 8-1 with Justice Sonia Sotomayor dissenting.

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"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 .

Sotomayor said while she agreed with the court allowing the abortion providers to continue their challenges she dissented "from the Court's dangerous departure from its precedents, which establish that federal courts can and
should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review."

She said the court, by its decision, "effectively invites other States to refine" the Texas law's model "for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government."

The court's decision came just a little more than a month after hearing expedited arguments in the case Nov. 1. And it allows the abortion providers to return to District Judge Robert Pitman who previously blocked the law, saying it violated the constitutional right to abortion. Pitman had twice been stymied in attempts to examine the constitutionality of the law.

At the time it heard the arguments, the court's decision to revisit its own actions from a month earlier, seemed to point to a change in position. But those hopes were dashed for abortion providers who had asked the court to intervene a second time, coupling their appeal with one from the federal government. The U.S. Justice Department contended it had the right to enforce federal constitutional rights, including the right to an abortion upheld by the Supreme Court for nearly a half century. The court disagreed.

The Supreme Court, however, still refused to touch the Texas law, known as SB 8, which effectively nullifies abortion rights by banning all abortions once cardiac activity is detected, which is usually about six weeks, and delegating enforcement to private citizens as a way to prevent quick judicial review of the law in the federal courts.

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