Supreme Court refuses to block Texas abortion law as legal fights move forward The justices allowed the abortion providers' challenges to go ahead against Texas' licensing officials – but not against anyone else. The court also blocked the Justice Department's challenge.


Supreme Court refuses to block Texas abortion law as legal fights move forward

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The U.S. Supreme Court today handed abortion providers a narrow win, at least for now - keeping alive their challenge to SB8. That's the Texas law that outlaws abortions after six weeks. The court's five most conservative justices are letting it stay while also allowing providers to fight it. NPR legal affairs correspondent Nina Totenberg explains.

NINA TOTENBERG, BYLINE: Under long-established legal precedents, the way to challenge a state law as unconstitutional is to sue state officials. Texas sought to get around that by enacting SB8, which took enforcement out of the hands of state officials, instead delegating enforcement to private citizens and empowering them to sue for at least $10,000 anyone who aids and abets an abortion after six weeks. The idea was that way there'd be no way for abortion providers to challenge abortion restrictions in federal court. It worked.

In September, the Supreme Court, by a 5-4 vote, declined to intervene and let the law go into effect. That prompted the U.S. Justice Department to go to court seeking to enforce the court's long-established right to abortion. The court, under intense public pressure, finally agreed to hear arguments in the case November 1. But today, the court delivered the providers the thinnest of victories and tossed the Justice Department suit out entirely. And by a 5-4 vote, it refused to block the law. So it remains in effect. University of Texas law professor Stephen Vladeck.

STEPHEN VLADECK: I think that today's decision has incredibly ominous implications for the ability of federal courts to strike down state laws that interfere with our constitutional rights and, more importantly, for the ability of those whose rights are violated to actually have their day in court.

TOTENBERG: The decision was, to say the least, messy. Eight members of the court agreed that the providers could keep their lawsuit alive, but that's where the agreement ended. Four of the court's conservatives said the providers could not sue most state officials charged with enforcing the state's laws. They couldn't sue the state attorney general as they usually would or state court clerks who would docket the private lawsuits heard under the law nor could they sue to block state judges from hearing those suits. The only people they could sue would be four state licensing officials, and most experts said the state could easily amend the law to get around even that.

Justice Gorsuch wrote the opinion, joined by Justices Alito, Kavanaugh and Barrett. Justice Thomas, however, went further, saying that in his view, nobody could sue to block the law. Chief Justice John Roberts, who in September voted to block the law, was joined by the court's three liberals. They would have allowed the abortion providers to sue all state enforcement officials, just as such constitutional challengers have for more than a century. And they urged the lower courts to resolve the case, quote, "without delay."

The clear purpose and actual effect of SB8 has been to nullify this court's rulings, Roberts wrote. And to drive the point home, he quoted decisions from the nation's founding era, written by Chief Justice John Marshall. Quote, "if the legislatures of the several states may at will annul judgments of the courts of the United States and destroy the rights acquired under those judgments," wrote Marshall, "the Constitution itself becomes a solemn mockery." Underlining the point, Roberts added, the nature of the federal right infringed does not matter. It is the role of the Supreme Court in our constitutional system that is at stake.

The court's decision came just days after it heard arguments in a Mississippi case called Dobbs vs. Jackson Women's Health Organization, a case that directly challenges Roe vs. Wade. But Florida State University professor Mary Ziegler says abortion rights supporters should take no comfort from today's slim win in Texas.

MARY ZIEGLER: If you read the win for abortion providers here as some kind of positive sign in the Dobbs case, I think you're deluding yourself. You see, at most, the conservative justices saying it's not Texas' job to overrule Roe v. Wade. That's our job.

TOTENBERG: Looking to the future, most abortion experts expect that we're about to see a chaotic period in which conservative, anti-abortion states copy the Texas law, including its many provisions, making it nearly impossible for abortion providers to succeed in court, a period in which abortions will become more and more difficult to obtain in about half the states. But professor Vladeck adds that while the Mississippi case may make bigger headlines, today's Texas decision may be more important.

VLADECK: With regard to the future of abortion rights in this country, Dobbs is obviously a bigger deal. But from the perspective of the Supreme Court's jurisprudence, this is a radical and remarkably groundbreaking and sort of direction-altering decision.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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