US Supreme Court says Texas abortion clinics can sue over law

The US Supreme Court has ruled that abortion providers can sue to challenge a controversial Texas abortion law.

The law, known as SB8, gives people the right to sue doctors who perform an abortion past six weeks, before most women know they are pregnant.

In its ruling, however, the court said that the law can remain in effect, leaving it in place.

Doctors, women’s rights groups and the Biden administration have heavily criticised the law.

The divisive law – which came into effect on 1 September – bans abortion after what some refer to as a foetal heartbeat. The law makes an exception for cases of medical emergency, but not for rape or incest.

The American College of Obstetricians and Gynaecologists says that at six weeks a foetus has not yet developed a heartbeat, but rather an “electronically induced” flickering of tissues that will become the heart.

The Texas law is enforced by giving individuals – from Texas or elsewhere – the right to sue doctors who perform an abortion past the six-week mark.

At issue at the Supreme Court was whether two groups – Texas abortion providers and the federal government – can sue to block the law.

Friday’s 8-1 ruling means that lawsuits from the providers can proceed. With the decision, the ruling will head back to the district court.

Once back in the district court, the providers will now be able to file for a stay of enforcement and ultimately challenge the law’s constitutionality.

In the meantime, the law will stay in place. In a separate order, the Supreme Court dismissed a separate challenge brought by the Biden administration.

In a written dissent, Justice Sonia Sotomayor agreed with allowing the lawsuits to move forward but was critical of leaving the law in place, saying that “the court should have put an end to this madness months ago, before SB8 went into effect”.

The ban has led to a steep drop in abortions, experts say.

Research from the Texas Policy Evaluation Project found that abortions in the state fell by nearly 50% after the law went into effect, leading to an influx of patients seeking abortion care in neighbouring states.

The abortion provider who brought the case, Whole Woman’s Health, called the Supreme Court ruling a victory “on very narrow grounds”.

Its decision to leave SB8 in place, despite allowing challenges to go forward, was “unjust, cruel and inhumane”, the group’s CEO Amy Hagstrom Miller said.

“Our staff are heartbroken, scared and discouraged”.

During a press briefing, White House press secretary Jen Psaki said that President Biden is “very concerned” by the court’s decision to keep SB8 in effect.”The ruling this morning is a reminder of how much these rights are at risk,” she said. The Biden administration is seeking to pass legislation – introduced in the House of Representatives in response to SB8 – that would protect women seeking to end pregnancies and the right of healthcare providers to conduct abortions. It is considered unlikely to pass in the Senate.

Texas Right to Life, an anti-abortion organisation that supports SB8, praised the Supreme Court for showing “judicial restraint” and dismissing the Biden administration’s legal challenge and vowed to “fight for this policy in the lower courts”. The group celebrated the law remaining in place but expressed frustration that the ruling allowed lawsuits to proceed.

In December, the Supreme Court, which currently has a conservative majority, heard a separate case regarding a Mississippi law that bans abortions after the first 15 weeks.

Anti-abortion activists consider the Mississippi case as among their best opportunities to overturn Roe v Wade, a landmark Supreme Court case that legalised abortions across the country.

The 1973 decision gave women the constitutional right to abortions during their first 12-week trimester of pregnancy.

A ruling in Mississippi case could mean that individual states can decide on the legality of abortions in their own jurisdictions.

An end to Roe v Wade “is overwhelmingly the most likely outcome” according to Jessie Hill, a reproductive rights law professor at Case Western Reserve University in Ohio.

“I think the writing is on the wall here,” Ms Hill said. “The decision about Texas only adds to that perception. It was not a very favourable decision to the clinics.”

In addition to Texas and Mississippi, several states – including Idaho, Oklahoma and South Carolina – have passed six-week ban bills so far this year. All have so far been stalled by legal challenges and haven’t been put into effect.

“It’s really unlike any other time in US history since 1973,” Ms Hill said. “To the extent that the Texas case provides tea leaves to read, they all point in the same direction.”

This is a minor victory for abortion providers because it removes a hurdle.

The unusual enforcement mechanism of the Texas law was deliberately designed to prevent legal challenges. The Supreme Court justices have now provided a path for the clinics to sue, albeit a narrow one.

But the Chief Justice, John Roberts, stressed that there were wider issues at stake. He said the law was specifically crafted to nullify the Supreme Court’s precedents on abortion, banning it at roughly six weeks of pregnancy rather than the court’s standard of two trimesters – in effect denying women a constitutional right.

And he wrote that the issue was not the federal right in question, it was that the role of the Supreme Court in America’s constitutional system was at stake.

Nonetheless, the conservative majority on the court refused to block the rogue law while it’s being litigated. And it has indicated that it may roll back abortion rights enshrined in nearly 50 years of precedent in a separate case involving the state of Mississippi.