In an 8-1 vote, the Supreme Court on Friday ruled that abortion providers in Texas may challenge S.B. 8, the state’s extreme “heartbeat bill,” by suing certain state licensing officials in federal court.
However, the justices—by a 5-4 vote—will not allow lawsuits against state judges, state clerks, or Texas Attorney General Ken Paxton because he has “no enforcement authority.”
The court also threw out a challenge by the U.S. Department of Justice to the constitutionality of S.B. 8, keeping Texas’ near-total abortion ban in effect for now.
The mixed decision written by Justice Neil Gorsuch constitutes a temporary win for abortion providers and advocacy groups that have mounted a full-throated challenge to the law. But Gorsuch declared that “the ultimate merits question,” that is, whether or not S.B. 8 is constitutional, is “not before the Court. Nor is the wisdom of S.B. 8 as a matter of public policy.”
Justice Sonia Sotomayor, in a partial dissent, wrote, “The Court should have put an end to this madness months ago, before S.B. 8 first went into effect. It failed to do so then, and it fails again today.”
“While the court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general,” Sotomayor continued. “By so doing, the court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”
Chief Justice John Roberts partially concurred, writing that the “clear purpose and actual effect of S.B. 8 has been to nullify this court’s rulings”—a reference to Roe v Wade and Planned Parenthood v Casey, the two landmark Supreme Court rulings on a women’s constitutional right to abortion.
“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,” he wrote.
In his opinion, conservative Justice Clarence Thomas derided the issue at hand as the “purported right to abortion.”
S.B. 8, which has been in place since Sept. 1, bans abortions in Texas once a “fetal heartbeat” can be detected, typically around the six-week mark and before most women know they’re pregnant. There are no exceptions for rape or incest.
In an unusual twist, Texas left enforcement up to private citizens, who can sue anyone who aids or abets an illegal abortion in civil court. That provision has made it difficult for opponents to sue Paxton or other state officials as they’re technically not in charge of enforcing the law.
In the first month after S.B. 8 was enacted, the number of abortions performed in Texas dropped by half, according to a study by the University of Texas at Austin’s Texas Policy Evaluation Project.
A November study by the Guttmacher Institute, a research and policy organization dedicated to protecting abortion rights, found that 11 U.S. states and the District of Columbia “had an increase in the number of abortions provided to Texas residents. These included states that are hundreds, and even thousands, of miles from the Texas border, such as Illinois, Washington, Ohio and Maryland.”
Alabama, Arkansas, Florida, and Ohio have since introduced bills mimicking S.B. 8.
The Supreme Court allowed S.B. 8 to take effect in September by a 5-4 margin, the majority having been formed by Clarence Thomas, Samuel Alito, and the three justices appointed by former President Donald Trump: Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch.