Supreme Court issues ruling on Texas abortion law

The Supreme Court ruled Friday that a Texas abortion law, that bars the procedure after the first six weeks of pregnancy, can remain in place, but the justices said that abortion providers had the right to challenge the law in federal court.

The law, known as SB 8, bars abortions after the detection of a fetal heartbeat at around six weeks — often before a woman knows she is pregnant. It is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

The law has no exception for rape or incest.

After the justices allowed the law to go into effect on Sept. 1, with Chief Justice John Roberts joining the liberal justices in dissent, women in the state scrambled across state borders and lower-income women were left with few options.

Supporters and critics of the law weighed in with “friend of the court” legal briefs, attempting to illustrate the broad impact of a potential ruling.

Massachusetts Attorney General Maura Healey, a Democrat, leads a coalition of 24 attorneys general siding with the abortion providers in the state. In their brief, Healey detailed how clinics in neighboring states are overwhelmed with patients from Texas. Healey warned the justices that if they were to greenlight the Texas law, other states could draft similar laws in areas such as gun rights, marriage equality and voting rights.

Healey told the court that the states recognize the “vital role” that judicial review plays in resolving tensions between a state’s policy preference and a constitutional right.

Indiana and 19 other Republican-led states filed a brief in support of Texas, arguing that the district court that ruled in favor of the Department of Justice “threatens to expose every State in the Union to a suit by the federal Executive Branch whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere.”

The Supreme Court’s action today means that the case will return to a district court for further proceedings, opening up the possibility that the law could soon be suspended.

The opinion allows the providers to challenge the law in court, giving them a narrow victory.

But it limits which state officials can be sued. This could make it difficult for abortion providers to carry out procedures after six weeks of pregnancy.

The decision also makes it difficult for abortion providers in Texas to prevent future civil lawsuits against them for performing abortions. Under the state law, any private citizen across the country can sue individuals thought to have assisted in violating the state’s so-called heartbeat ban. 

President Biden said he’s “very concerned by the Supreme Court’s decision to allow SB 8 to remain in effect, in light of the significant consequences that law has for women in Texas and around the country, and for the rule of law.”

White House Press Secretary Jen Psaki said earlier Friday that Biden is “deeply committed to the constitutional right recognizing Roe v. Wade, and he has argued and advocated in the past for codifying Roe through passing the Women’s Health Protection Act.”

Vice President Kamala Harris told reporters the court’s ruling “is an attempt to undo 50 years of precedent” on abortion.

Vice President Kamala Harris speaks in the Ceremonial Office of the Eisenhower Executive Building in Washington, DC, on December 10.

Vice President Kamala Harris told reporters that the Supreme Court’s Friday ruling upholding a Texas abortion law “is an attempt to undo 50 years of precedent.”

Earlier Friday: White House press secretary Jen Psaki on Friday said President Biden is “very concerned by the Supreme Court’s decision allowing SB 8 to remain in effect” after the court left in place the Texas abortion law that bars the procedure after the first six weeks of pregnancy.

White House Press Secretary Jen Psaki speaks to reporters in the Brady Press Briefing Room at the White House on December 10, in Washington, DC.

White House press secretary Jen Psaki said Friday that President Biden is “very concerned by the Supreme Court’s decision allowing SB-8 to remain in effect” after the Court left in place a Texas abortion law that bars the procedure after the first six weeks of pregnancy.

Psaki noted that Biden was attending former Sen. Bob Dole’s funeral for “the majority of the day,” and that a statement “in his name” would be released soon as they wanted the President to see and review it first.

Psaki added that Biden is especially concerned, “given the consequences the law has for women in Texas and around the country and for the rule of law.”

Earlier Friday: Reporters asked Biden for his reaction to the Supreme Court’s ruling and told reporters in the South Court Auditorium, “My problem is I haven’t seen — I just got back, I just walked here from delivering Bob Dole’s eulogy. So, I haven’t seen the report, I will take a look at what the Supreme Court said, I don’t know what it said.”

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.

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.

More background: 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.

That is because of the six-week ban’s novel enforcement mechanism. The law allows private citizens — from anywhere in the country — to bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law.

If lower courts are only allowed to issue orders blocking the select state officials from enforcing the ban, it is unclear if that will be enough to allow clinics to resume the procedure, as they might still face state court litigation from private citizens seeking to enforce the ban.

A Supreme Court decision that overturned Roe v. Wade could bring abortion bans to as many as half the states in the country already poised to prohibit the procedure. Such a move would also have knock-on effects on the primarily blue states that would maintain access to abortion.

A Roe v. Wade reversal — and the flood of abortion restrictions such a ruling would usher in — stands to affect the distance women would have to travel to their nearest clinic, according to a new report released this week by the Guttmacher Institute. The institute, which favors abortion rights, used data from the US Census Bureau to estimate the number of women of reproductive age living in each Census block and calculated the driving distance to the closest abortion clinic.

Illinois, North Carolina and California are among the states that could see the biggest jump in out-of-state abortion patients, as their clinics would be closest for women whose own states are positioned to quickly ban the procedure, according to Guttmacher’s analysis.

In states like Louisiana, Texas and Idaho, women would see the distance they’d have to travel to the nearest clinic increase by tenfold or more, if Roe v. Wade was reversed and abortion bans went into effect in the states most likely to implement them.

The Supreme Court ruled Friday that the Texas’ six-week abortion ban, which prohibits abortion after fetal cardiac activity, could remain in place. The justices, however, said that abortion providers had the right to challenge the law in federal court. 

The law appears to run afoul of the constitutional protections for pre-viability abortions — a point usually around 23 weeks into the pregnancy — that the Supreme Court enshrined in its 1973 Roe decision.

During oral arguments in November, justices limited their review to the law’s novel structure, which bars state officials from enforcing it. Instead, private citizens — from anywhere in the country — can bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law. Critics say the law was crafted to shield it from challenges in federal courts and stymie attempts by abortion providers and the government to sue the state and block implementation.

CNN’s Ariane de Vogue contributed reporting to this post.

On Sept. 1, the Supreme Court, in a 5-4 vote, allowed the Texas law to go into effect while the appeals process played out with Chief Justice John Roberts siding with the liberals in a dissent. Since then, women in Texas have scrambled across state borders to obtain the procedure, and poor women — without the means to travel — were left with few options.

Lawyers fighting the law called it blatantly unconstitutional and designed with the express intent to make challenges in federal court nearly impossible, therefore nullifying a woman’s constitutional right to an abortion.

SB 8, the law in question, bars abortions after the detection of a fetal heartbeat at around six weeks — often before a woman knows she is pregnant — and is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

While both the providers and the Biden administration had won challenges in federal district court, the conservative 5th US Circuit Court of Appeals reversed those decisions and allowed the law to remain in effect.

The law’s novel structure, which bars state officials from enforcing it, is a central part of the litigation.

What happened today: The Supreme Court left in place Friday a Texas abortion law that bars the procedure after the first six weeks of pregnancy, but the justices said that abortion providers have the right to challenge the law in federal court.

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.

The Supreme Court is seen in Washington, DC, on November 1.

The Supreme Court decision makes it difficult for abortion providers in Texas to prevent future civil lawsuits against them for performing abortions. Under the state law, any private citizen across the country can sue individuals thought to have assisted in violating the state’s so-called heartbeat ban. 

By a vote of 8-1, the court allowed the providers’ challenge to move forward against some state officials, but they divided 5-4 on whether other officials could be sued.

Justice Neil Gorsuch said that the court had agreed to hear the case to see if certain abortion providers could challenge the law. “We conclude that such an action is permissible against some of the named defendants but not others,” Gorsuch wrote.

Justice Sonia Sotomayor, writing for her liberal colleagues, said the court should have gone much further and blocked the law from going into effect when it had the chance back in September while the appeals process played out.

Sotomayor said it was a good thing that the challengers would be able to go into court to challenge the law and that she hoped that a district court would “act expeditiously” to enter the relief.

But, she said, because the court limited which officials could be sued, it will make the legal challenges more difficult to bring, which in turn, could make it more difficult for the providers to open their doors again.

This artist sketch depicts Marc Hearron, petitioner for Whole Woman's Health, standing while speaking to the Supreme Court on November 1, in Washington, DC.

When the Supreme Court heard oral arguments on the Texas abortion law on Nov. 1, the justices limited their review to the law’s novel structure, which bars state officials from enforcing it.

Instead, private citizens — from anywhere in the country — can bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law. Critics say the law was crafted to shield it from challenges in federal courts and stymie attempts by abortion providers and the government to sue the state and block implementation.

Marc Hearron, a lawyer for a coalition of abortion providers, argued that the providers should be able to proceed with a lawsuit targeting not only Texas officials but also state court judges, clerks and any private parties who are responsible for implementing the law. The crux of the argument is that the state legislature cannot craft a law that’s insulated from review in federal courts, particularly when the state has delegated enforcement to the general public.

While the state would be immune from such a lawsuit under normal circumstances, Hearron argued that in this instance the case can go forward because a federal constitutional right is at stake and private individuals are acting as agents of the state.

He said the lawsuit should be able to go forward because the state “delegated enforcement to literally any person anywhere except for its own state officials.”

But Texas Solicitor General Judd Stone said the case should not be able to proceed in federal court because the state is not the proper defendant, since SB 8 bars state officials from enforcing the law. He stressed that the law allows civil lawsuits to proceed in state courts after an abortion is challenged.

Critically, Justice Amy Coney Barrett expressed discomfort with the idea that a federal court could not hear the challenge and wondered if a federal constitutional defense “can be fully aired” in state courts. She seemed troubled that a state court hearing would be sufficient to air constitutional grievances.

And Justice Brett Kavanaugh wondered if other states might copy the law to restrict other rights concerning such issues as gun control and free speech. He asked whether the law couldn’t be “easily replicated in other states that disfavor other constitutional rights.”

Critically, though, while Barrett and Kavanaugh seemed receptive to the argument put forward by the providers, both had previously voted to allow the controversial law to remain in effect.

Roberts, on the other hand, who would have voted to block SB 8, did express some concern that the providers were targeting state judges who might implement the law. “You might appreciate that the idea of suing the judges sort of got our attention,” he said to Hearron.

But at another point Roberts worried about the chilling effect of the law. As things stand, providers are not attempting to carry out abortions because of draconian penalties. That means Roe v. Wade has become a dead letter in the state.

“As I understand it,” Roberts said to Stone, “the only way in which you get federal court review is, of course, for somebody to take action that violates the state law,” suggesting that such legal challenges may never reach open court.

Conservative Justice Neil Gorsuch emerged as the strongest defender of Texas’ argument, while Kagan expressed the most criticism, at one point sarcastically referring to the law’s architects as “some geniuses.”

When it was her turn, US Solicitor General Elizabeth Prelogar vigorously defended the government’s ability to challenge the law, calling it a “brazen attack” on the coordinate branches of federal government.

But Roberts grilled her on the scope of the government’s argument. “The authority you assert is broad as can be,” he said referring to it as a “limitless, ill-defined” authority.

Justice Samuel Alito said he understood the government’s concerns —”I get it,” he told Prelogar — but he rejected her argument that the court’s opinion would apply only to the case at hand. “When we decide a case, the rule that we establish should apply to everybody,” he said.

Kagan continued her attack on the law. She told Stone that if he were right, “we would be inviting states – all 50 of them – with respect to their unpreferred constitutional rights, to try to nullify the law” when it comes to issues like “guns, same-sex marriage, religious rights.” She said there would be “nothing the Supreme Court could do about it.”

CNN Supreme Court analyst Joan Biskupic said the Supreme Court’s ruling on the Texas abortion law is “a prelude to the real main event the justices are now considering.”

The case, Dobbs v. Jackson Women’s Health Organization, stems from a lawsuit filed by abortion providers challenging Mississippi’s 2018 law prohibiting abortion after 15 weeks into pregnancy. The ban is currently on hold due to lower court orders that cited the current Supreme Court precedent protecting the right to an abortion until fetal viability, a point around 24 weeks into the pregnancy.

“We now see why it took them so long to deliver this,” she added.

“We’ve got a splintered vote … And we have Chief Justice John Roberts breaking off with the liberals, complaining about, you know, other defendants who should be able to be sued here. Then you have the three remaining liberals — [Sonia] Sotomayor, Stephen Breyer and Elena Kagan — also talking about how the right to abortion in Texas has essentially not been in effect since Sept. 1,” she said.

Biskupic said Justice Neil Gorsuch, former President Trump’s appointee, wrote the main opinion.

CNN’s Tierney Sneed contributed to this post.

The Supreme Court ruling on the Texas abortion law is a “sobering message for the country,” CNN legal analyst Jeffrey Toobin said Friday.

“This is a constitutional right that has been recognized since 1973, since Roe v. Wade. And the Supreme Court has said, now twice, that it’s OK for Texas to take away this right from women,” he said. “I think that is a very clear message of where they’re heading on the Mississippi case.”

Toobin reminded that this direction of the court is influenced by former President Trump’s appointees.  

How the court ruled: The Supreme Court left in place a Texas abortion law that bars the procedure after around six weeks of pregnancy Friday, but the justices said that abortion providers had the right to challenge the law in federal court.

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The Supreme Court left in place Friday a Texas abortion law that bars the procedure after around six weeks of pregnancy, but the justices said that abortion providers had the right to challenge the law in federal court. 

Read the opinion below:

The Supreme Court left in place a Texas abortion law that bars the procedure after around six weeks of pregnancy Friday, but the justices said that abortion providers had the right to challenge the law in federal court.  

The Supreme Court has ruled on a Texas law that bars most abortions after six weeks. It is the most restrictive abortion law in the country. 

Two key conservative justices seemed open to arguments from abortion providers that they should be able to challenge a Texas abortion six-week ban in federal court as the Supreme Court grappled with the issue for nearly three hours on Nov. 1.

In a separate challenge, brought by the Department of Justice, however, several conservative justices did express some reservations about the breadth of the government’s arguments, with Chief Justice John Roberts calling the Biden administration’s argument “as broad as can be.”