US Supreme Court allows Texas abortion providers to challenge state’s near-total ban

Issued on: 10/12/2021 – 18:35

Eight of the nine justices on the conservative-leaning court agreed that lawsuits filed by abortion providers against the Texas law may proceed in federal court.

The “Texas Heartbeat Act” bans abortion at around six weeks into a pregancy and is the most restrictive law passed in the US since abortion was made a constitutional right five decades ago.

Chief Justice John Roberts, in his opinion, said that “given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay”.

A previous bid by abortion providers to halt enforcement of the Texas law failed in the nation’s highest court by a 5-4 margin on September 1.

The Supreme Court in a separate case Friday dismissed a challenge to the Texas law brought by President Joe Biden’s administration.

Abortion providers and the Biden administration had asked the court to block the Texas law while litigation continues, but the justices opted to leave it in place for now.

The court has yet to decide another major abortion rights case from Mississippi that could lead to the overturning of the landmark 1973 Roe v. Wade ruling that legalised the procedure nationwide.

State laws can be challenged in federal court

In the Texas case, the court ruled 8-1 that the challenge was allowed under a 1908 Supreme Court ruling that said state laws can be challenged in federal court by suing state government officials.

Texas had sought to exploit a loophole in the 1908 ruling by saying no state officials could enforce the ban on abortions at around six weeks, but the court said the challengers could pursue their case by naming state licensing officials as defendants.

Conservative Justice Clarence Thomas dissented on that part of the ruling, saying he would have dismissed the lawsuit altogether.

The Texas measure bans abortions at a point in time when many women do not yet realise they are pregnant, and has no exception for pregnancies resulting from rape or incest. It is one of a series of restrictive abortion laws passed by Republicans at the state level in recent years.

An unusual enforcement mechanism

The law enables private citizens to sue anyone who performs or assists a woman in getting an abortion after cardiac activity is detected in the embryo. Individual citizens can be awarded a minimum of $10,000 for bringing successful lawsuits under the law. Biden’s administration has likened the process to bounty hunting.

The way the law is structured made it more difficult to directly sue the state to challenge its legality, helping shield the measure from being blocked immediately.

Abortion providers and the Biden administration argued that the law violates a woman’s constitutional right to terminate a pregnancy recognised in Roe v. Wade and is impermissibly designed to evade federal judicial review.

The Mississippi law – blocked by lower courts – bans abortions starting at 15 weeks of pregnancy. The court’s conservative justices during oral arguments on December 1 indicated sympathy toward the Mississippi measure and potential support for overturning Roe.

How the conservative-leaning justices voted in the Texas case may not indicate how they will vote on the Mississippi measure because the legal issues differ, particularly in relation to the Texas law’s unusual enforcement mechanism.

(FRANCE 24 with AFP and REUTERS)