OPINION: This article may contain commentary which reflects the author's opinion.
The U.S. Supreme Court on Friday let stand a Texas abortion law barring the procedure after the first six weeks of pregnancy, but with one caveat: The justices said that providers will have the right to sue in federal court challenging the law.
So in other words, it sounds like the high court put the issue back on the legal merry-go-round in a kick-the-can moment that means the justices are likely to have to deal with the Texas law in the future.
CNN provides some context:
The court’s action means that the case will return to a district court for further proceedings, but it may still be difficult for providers to open their doors again.
It provides a narrow victory for the abortion clinics, allowing them to get into court. But at the same time, the court limited which state officials could be sued by the providers, which could make it difficult for the providers to resume providing abortions after the sixth week of pregnancy.
In statements after the decision came down, the abortion advocates who had challenged the law painted the Supreme Court’s decision as a disappointment for how it will hinder the clinics’ ability to continue to fight the ban in court.
“While the Court did not put a complete end to our legal challenge, its failure to stop Texas’s deliberate nullification of the constitutional right to abortion within its borders makes the Court complicit in widespread chaos and harm to Texans, and responsible for giving the green light for other states to circumvent the constitution through copycat laws,” noted Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, in a statement.
CNN noted that whom abortion providers are allowed to sue will matter greatly.
“The question of whom providers’ can sue in the federal court — while seemingly technical — could be hugely consequential in the abortion advocates’ efforts to block the law in a way that will let abortions resume after six weeks,” the network reported.
“By limiting whom abortion providers can sue, the Supreme Court left open the possibility that the abortion providers may ultimately win ruling in their favor, but because it only blocks those select officials from enforcing the law, it won’t be enough to allow clinics to reopen their doors,” the report continued.
Justices Neil Gorsuch and Sonia Sotomayor had some back-and-forth over the ruling.
“The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy,” Sotomayor wrote in a partial dissent.
“Some women have vindicated their rights by traveling out of State. For the many women who are unable to do so, their only alternatives are to carry unwanted pregnancies to term or attempt self-induced abortions outside of the medical system,” she added.
A major critic of the Texas law, she added that the court engaged in a “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.”
“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. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government,” Sotomayor noted further.
Gorsuch, however, responded by noting that the court has already considered the question and has rejected the argument.
“[Sotomayor] contends that S. B. 8 ‘chills’ the exercise of federal constitutional rights,” he wrote.
“If nothing else, she says, this fact warrants allowing further relief in this case … Here again, however, it turns out that the Court has already and often confronted— and rejected—this very line of thinking. As our cases explain, the ‘chilling effect’ associated with a potentially unconstitutional law being ‘on the books’ is insufficient to ‘justify federal intervention’ in a pre-enforcement suit,” Gorsuch contended.
He added that “this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice … The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.”
