Pro-Choice protesters protest outside the US Supreme Court in Washington, DC on November 1, 2021.
Yasin Öztürk | Agency Anadolu | Getty Images
The Supreme Court ruled Friday that a federal lawsuit by abortion providers challenging the legality of Texas’s harsh new abortion ban can continue before the law is enforced against anyone, at least some currently named defendants.
However, the Supreme Court allowed Texan law to remain in effect during this appeal, which will be heard in a lower federal court. The law effectively prohibits most abortions in the state.
The ruling does not address whether a majority in the Supreme Court considers the ban to be unconstitutional.
Also on Friday, the Supreme Court said a second lawsuit against the law filed by the Biden administration could not be carried out.
Texas law, known as SB 8, went into effect in September. It empowers individuals to sue anyone who “supports or encourages” an abortion after a fetal heartbeat is detected, usually about six weeks after pregnancy, for at least $ 10,000. That’s 18 weeks less than Roe v’s standard. Wade, the 1973 Supreme Court ruling that enshrined a woman’s constitutional right to abortion.
But the law has not yet been enforced against any abortion provider.
In its 8-1 ruling, the court found that “other viable ways to dispute the compatibility of the law with the federal constitution may also be possible and the court does not anticipate the possibility”.
The ruling states that the abortion providers who sued cannot sue a clerk, a Texas judge, or Texas Attorney General Ken Paxton.
However, you can commence the lawsuit against other named defendants, including the chief executives of three state health agencies – medicine, nursing, and pharmacy – and Allison Benz, executive commissioner of the Texas Health and Human Services Commission.
The ruling came more than a week after the Supreme Court heard oral arguments in a separate case, Dobbs v Jackson Women’s Health, in which the state of Mississippi asked judges to set aside decades-old precedents for a constitutional right to abortion.
During these arguments, the conservative 6: 3 majority in the court appeared ready to weaken this precedent against the vehement objections of the three liberal judges.
“Will this institution survive the stink of the public perception that the Constitution and its reading are just political acts?” the liberal judiciary Sonia Sotomayor wondered aloud. “I don’t see how that is possible.”
The two cases in which Texas law was challenged, one by the Biden administration and one by a group of abortion providers and advocates, were effectively combined and put into an expedited timeline of information and reasoning.
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SB 8 effectively bans most abortions in the state by banning the procedure after a fetal heartbeat is detected, as many women are unaware of their pregnancy at this point.
The law provides an exception for medical emergencies, but not for pregnancies due to rape or incest.
SB 8 specifically excludes state officials from enforcing the law in order to avoid these officials being named in legal challenges to the ban before it is actually enforced.
Opponents argued that this structure was created with the intention of thwarting judicial review. Some of the Conservatives in the Supreme Court appeared to agree during the hearing on November 1st.
“A loophole is being exploited here,” said Judge Brett Kavanaugh.
The abortion law, the most restrictive in the country, became a focal point for controversy at the Supreme Court even before its final term officially began when a slim majority refused to block the ban from entering into force in September.
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