Pro-Choice protesters protest outside the US Supreme Court in Washington, DC on November 1, 2021.
Yasin Öztürk | Agency Anadolu | Getty Images
Nevertheless, abortion providers sued for an unconstitutional and interim ban.
The judgments on Friday 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. Mississippi’s new law prohibits abortions after 15 weeks of gestation, except “in the event of a medical emergency or severe fetal abnormality”.
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During the arguments in this case, the conservative 6: 3 majority in the court appeared ready to weaken, and perhaps even overturn, the right to abortion against the energetic objections of the three liberal judges. The Supreme Court has yet to rule on the Mississippi case.
The Texas Heartbeat Act has effectively put an end to most abortions in the state by empowering individuals to sue anyone who “aids or encourages” an abortion after a fetal heartbeat is detected for at least $ 10,000, typically around six weeks or so into pregnancy. Women who have abortions cannot be sued.
Many women who have been pregnant for six weeks or less do not know that they are carrying a fetus.
Texas law, also known as SB 8, provides an exception for medical emergencies, but not for pregnancies resulting from rape or incest.
SB 8 specifically excludes state officials from enforcing the law in order to avoid those officials being named as defendants in contesting the ban before it has ever been used against a provider.
The legal period of around six weeks is 18 weeks shorter than Roe v’s standard. Wade, the 1973 Supreme Court ruling that first enshrined a woman’s constitutional right to abortion.
The court said in that ruling that states could not prohibit abortions in the first trimester of pregnancy, a period chosen based on the idea that a fetus cannot normally survive outside the uterus during this time.
On Friday, the Supreme Court, in its 8: 1 ruling in the Texas case, allowed the abortion providers’ lawsuit to only continue against some of the originally named defendants.
The majority of judges said abortion providers cannot sue a state official, a Texas judge, or Texas Attorney General Ken Paxton for a variety of reasons.
However, you can commence the lawsuit against other named defendants, including the chief executives of three state health agencies – medicine, nursing, and pharmacy – as well as against Allison Benz, the executive commissioner of the Texas Health and Human Services Commission.
This is because these bodies and officials can take enforcement action against abortion providers if the providers violate the Texas Health and Safety Code, which includes SB 8, the Supreme Court ruling found.
The judgment stated that “other feasible ways to dispute the compatibility of the law with the federal constitution are also possible and the court does not anticipate the possibility.”
That comment came a day after a Texas District Court judge ruled that SB 8 was in violation of the state’s constitution through its mechanism that empowers individuals to enforce the law.
The state judge said in a ruling immediately appealed by an anti-abortion group that the law gives legal status to persons not injured by abortion and constitutes an “unlawful transfer of enforcement powers to a private individual”.
The Supreme Court majority opinion on Friday was drafted by Judge Neil Gorsuch, a Conservative appointed to the Supreme Court by former President Donald Trump.
Chief Justice John Roberts, another Conservative, said in a partial disagreement joined by Liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor that Texas law “has the effect of denying the exercise of our right under the Federal Constitution.”
Roberts wrote that “Given the persistent deterrent effect of state law the [lower federal court in Texas] The district court should settle this dispute and immediately seek appropriate legal remedies. “
Sotomayor, in a separate statement, along with Breyer and Kagan, broke the majority for refusing to allow the lawsuit to keep Texas officials as defendants.
“By foreclosing the lawsuit against officials of the state court and the attorney general, the court
paves the way for states to replicate and perfect the Texas plan in the future, aimed at the exercise of any rights recognized by this court that they disagree with, “she wrote.
“This is not a hypothesis. New permutations of SB 8 are coming. In the months since this court failed to enact the law, lawmakers in several states have debated or introduced laws that replicate its scheme to combat locally disadvantaged rights.”
Judge Clarence Thomas, another Conservative, said in a dissent that he had ordered that plaintiffs’ lawsuits be dismissed in full, arguing that they had no legal grounds to sue the government officials whom the majority of judges admitted as defendants .
And Thomas wrote in a footnote: “As I have explained elsewhere, abortion providers lack the power to enforce the supposed constitutional rights of their potential customers.”
