One hundred days after allowing a Texas law that bars abortion after the first six weeks of pregnancy to go into effect — sending women scrambling to neighboring states to obtain a procedure protected by the Constitution — the Supreme Court on Friday gave supporters of abortion rights little to celebrate.
The court did allow lawyers for clinics the chance to get into federal court — to sue certain state officials — in an attempt to block enforcement of the law and argue that it is in direct challenge to Roe v. Wade.
But it was hardly the opinion that the providers hoped for. The law — which has rendered Roe v. Wade a dead letter in the country’s second largest state — is still in effect. Lawsuits, from anyone in the country against an individual who has assisted a woman getting an abortion at around six weeks can still be filed by so called “bounty hunters” who are able to win damages starting $10,000.
And abortion doctors — seeing that the court allowed the law to remain on the books — are likely to be hesitant to perform the procedure again for fear of draconian penalties. As of Friday, the very structure of the law, something that Attorney General Merrick Garland referred to as a “scheme,” will remain in place, which will invite other states to pass similar laws, with a few tweaks.
On top of all of that, the conservative-leaning Supreme Court signaled in a separate case earlier this month that it is prepared to gut — if not overturn — Supreme Court abortion precedent.
The Texas case has always revolved around the unusual way the law was written. Critics say that it was an attempt to evade judicial review.
Marc Hearron, who argued the Texas case before the justices on behalf of abortion clinics said on a conference call after the opinion came down that by allowing the law to remain in effect the court “effectively endorses Texas’ efforts to subvert the US Constitution” and he said it “green-lights” the law’s “bounty hunting scheme.”
It is a “dark day for abortion patients” who are continuing to live under a law that bars the procedure before most women even know they are pregnant, he said.
And Amy Hagstrom Miller, the president of Whole Woman’s Health, a clinic behind the challenge, said on the same call that the opinion is “not OK” and emphasized the law’s “excruciating” impact on her staff and patients.
Supporters of abortion rights wanted the court to move boldly. To say that the providers could get into court and sue Texas and its attorney general, state court judges even court clerks to try to block the law while the legal challenges played out. Such a move would have signaled that copy cat laws would ultimately fail.
But that is not the opinion they got. Instead a majority of the court foreclosed lawsuits against the attorney general and other officials and in doing so invited other states to pass similar laws that critics say are meant to nullify federal rights.
“We conclude,” Justice Neil Gorsuch wrote, that lawsuits are permissible against “some of the named defendants in the suit” but not “others.”
Gorsuch noted the providers had other available avenues, in state court for example, even though those proceedings could take weeks or months and would be a more piecemeal approach to blocking the law. He rejected allegations that the court had taken too long to rule saying in a footnote that the court had “ordered briefing, heard argument and issued an opinion on the merits — accompanied by three separate writings — in fewer than 50 days.”
Chief Justice John Roberts, who sided with the liberal colleagues in believing that the providers should have been able to sue a wide range of officials such as state court clerks who could be blocked from actually filing cases and docketing lawsuits brought by the so-called bounty hunters.
He noted up front that the law is “contrary” to the court’s decisions in Roe v. Wade and Planned Parenthood v. Casey, and it has “had the effect of denying the exercise of what we have held is a protected right under the Federal Constitution.”
He said the law’s unusual provisions “effectively chill the provision of abortions in Texas.”
“Given the ongoing chilling effect of the state law,” Roberts said, the district court “should resolve this litigation and enter appropriate relief without delay.”
Always worried about the court’s institutional reputation, he said that the “clear purpose” of the law is to “nullify” the court’s past rulings and stressed that it will inspire other states to pass similar laws.
“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 said.
Justice Sonia Sotomayor, in her own opinion joined by Justices Elena Kagan and Stephen Breyer, picked up on Roberts’ point about copy cat lawsuits. She said “new permutations of S.B. 8 (the Texas law at issue) are coming.” And she said that states could also target other constitutional rights.
“What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority,” she asked.
“While the Court properly holds that this suit may proceed against licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general,” she continued.
“By doing so, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic,” she concluded.
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