Supreme Court allows Texas abortion providers to sue but leaves ban in place

The US Supreme Court has partially granted requests from abortion providers to sue state officials in Texas over its new abortion law, but has allowed the state’s ban on the procedure to remain in effect.

In opinions published on Friday, the country’s highest court said abortion providers could proceed with suits in lower courts against some public officials in Texas “with specific disciplinary authority over medical licensees”, but not against state court clerks and judges, nor Ken Paxton, the state’s attorney-general.

The high court, which is split 6-3 between conservative and liberal justices, also dismissed a call from the justice department to suspend the law, which is one of the most stringent in the US. It bans abortions after six weeks, before many women know they are pregnant, and does not make exceptions for rape or incest.

The abortion ban in Texas has fuelled increasingly heated debate over abortion rights in the US, where conservative states have been emboldened in recent weeks by the most serious challenge yet to Roe vs Wade, the landmark 1973 Supreme Court ruling that legalised abortion.

Friday’s decision comes less than two weeks after the high court heard oral arguments in a case brought by the last abortion clinic in Mississippi against the state, which enacted a 15-week ban on the procedure and has asked the court to overturn Roe. Conservative justices appeared to lean in favour of Mississippi.

The Texas order prolongs the legal fight over the new rules by pushing it back down to lower courts. In October, a federal-district court in Texas suspended the law after the justice department sued the state. That suspension was later lifted by a federal appeals court.

The Center for Reproductive Rights, one of the institutions representing the abortion providers, said in a statement on Friday that the court’s decision had ended the “most promising pathways to blocking [the] law”.

It added that the ruling followed “100 days of legal back-and-forth that have wreaked havoc on abortion access in Texas and the surrounding region”.

The justice department said in a statement on Friday it would “continue . . . efforts in the lower courts to protect the rights of women and uphold the Constitution”, describing the Texas law as “specifically designed to deprive Americans of their constitutional rights while evading judicial review”.

Neil Gorsuch, a justice nominated by former president Donald Trump, said in his opinion backing a 5-4 majority that the question of whether the Texas statute was constitutional was “not before the Court”.

But Sonia Sotomayor, a justice nominated by Barack Obama, said in her dissent that “the Court should have put an end to this madness months ago”, before the Texas law came into effect on September 1.

She added that by blocking cases against court officials and the Texas attorney-general, the court “effectively invites other states to refine the [Texas law’s] model for nullifying federal rights”.

When hearing oral arguments in the Texas case last month, multiple justices signalled scepticism about the novel enforcement mechanism at the heart of the state’s new statute.

The law is unusual in that it allows individuals, rather than the state, to report people to authorities for helping women have abortions, and to potentially receive at least a $10,000 payment for doing so.

Experts have described the structure of the statute as an effort to sidestep Supreme Court decisions that prohibit states from outlawing abortions before the foetus reaches “viability”.