Supreme Court allows lawsuit challenging Texas abortion ban to continue but keeps law in effect for now

On Friday, in its 8-1 ruling in the Texas case, the Supreme Court allowed the abortion providers’ suit to proceed against only some of the originally named defendants.

The majority of justices said that for various reasons abortion providers cannot sue a state court clerk, a Texas judge or Texas Attorney General Ken Paxton.

However, they can proceed with the suit against other named defendants, who include executive directors of three state health boards — medical, nursing and pharmacy — as well as against Allison Benz, the executive commissioner of the Texas Health and Human Services Commission.

That is because those boards and officials may take enforcement actions against abortion providers if the providers violate Texas’ Health and Safety Code, which includes S.B. 8, the Supreme Court ruling noted.

The ruling noted that “other viable avenues to contest the law’s compliance with the Federal Constitution also may be possible and the Court does not prejudge the possibility.”

That comment came a day after a Texas state district court judge ruled that S.B. 8 violates the state constitution because of its mechanism authorizing private citizens to enforce the law.

The state judge, in a ruling that was immediately appealed by an anti-abortion group, said that the law gave legal standing to people not injured by a pregnancy terminated and was an “unlawful delegation of enforcement power to a private person.”

The Supreme Court’s majority opinion Friday was written by Justice Neil Gorsuch, a conservative appointed to the Supreme Court by former President Donald Trump.

Chief Justice John Roberts, another conservative, in a partial dissent joined by the liberal justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, said the Texas law “has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.”

Roberts wrote that “Given the ongoing chilling effect of the state law, the [lower federal court in Texas] District Court should resolve this litigation and enter appropriate relief without delay.”

Sotomayor, in a separate opinion, joined by Breyer and Kagan, blasted the majority for refusing to allow the suit to keep as defendants other Texas officials.

“By foreclosing suit against state-court officials and the state attorney general, the Court
clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree,” she wrote.

“This is no hypothetical. New permutations of S. B. 8 are coming. In the months since this Court failed to enjoin the law, legislators in several States have discussed or introduced legislation that replicates its scheme to target locally disfavored rights.”

Justice Clarence Thomas, another conservative, in a dissent said that he would have ordered the plaintiffs’ lawsuits to be dismissed entirely, arguing that they had no legal grounds to sue the government officials that the majority of justices allowed to remain as defendants.

And, Thomas wrote in a footnote, “As I have explained elsewhere, abortion providers lack standing to assert the putative constitutional rights of their potential clients.”