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Texas’s Abortion Law Is Unprecedented, But the Supreme Court Isn’t Treating It That Way

Texas’s highly restrictive abortion law is still on the books — at least for now. That’s one of the most important takeaways after the Supreme Court released an opinion on Friday morning about the fate of Texas’s ban on abortion after about six weeks of pregnancy, which contains an unusual enforcement mechanism that left the courts in doubt about how its constitutionality could be challenged. 

The ruling wasn’t really a victory for supporters of Texas’s law, since the justices ruled 8-1 that abortion providers can proceed with a lawsuit against some state officials.1 But it was a limited win for the abortion providers, too, since the justices declined once again to block the law while the challenge moves through the courts.

Texas’s law, which contains no exceptions for rape and incest, has been in force since September. And it is by far the most restrictive abortion ban in the country, as it directly contradicts the precedent set in Roe v. Wade, the 1973 opinion that established a constitutional right to abortion. This also marks the court’s third refusal to pause the law.

Today’s decision comes less than two weeks after the justices heard another direct challenge to Roe in a case involving a Mississippi law that bans abortions after 15 weeks of pregnancy. And in the oral argument in that case, all six of the conservative justices indicated that they’d be open to upholding the 15-week ban, which is also more restrictive than what’s allowed under Roe. In fact, five of the conservatives even seemed inclined to overturn Roe altogether.

This is why it’s hard not to interpret today’s ruling as another ominous sign for abortion-rights supporters. The law in Texas isn’t just a run-of-the-mill abortion ban. As Chief Justice John Roberts has repeatedly noted, it’s an unprecedented attempt to make it very hard for the federal courts to get involved in a dispute over a constitutional right. But the other five conservatives haven’t treated it that way. And once again, those five conservatives don’t seem bothered by the fact that Texas is openly defying the precedent established in Roe.

The Texas law’s journey through the courts has been tangled and confusing because of a unique feature of its enforcement. Under the law’s structure, private citizens can sue abortion providers who violate the ban and obtain a bounty of at least $10,000 if they’re successful, taking responsibility for enforcing the law away from the state officials who would normally be in charge, like prosecutors. This has created a puzzle over who can be sued to challenge the law. Normally in cases involving abortion bans, abortion providers sue state officials like prosecutors over a law’s constitutionality, and federal courts put the law on pause while the challenge makes its way through the legal process. That’s why Mississippi’s abortion ban — and the dozens of other bans contradicting Roe that have been passed in the past five or so years — isn’t in force.

A photo illustration of signs both for and against abortion in front of the Supreme Court.

Related: What Americans Really Think About Abortion Read more. »

With this opinion, the constitutional challenge to Texas’s law can finally go forward in the lower courts, which is significant, although Texas abortion providers can sue only some of the state officials they had originally targeted. That means the law could still be overruled in the future. In his majority opinion, Justice Neil Gorsuch stressed that the court was not addressing the constitutionality of the abortion ban itself or the “wisdom of [the law] as a matter of public policy.”

But although the decision appeared almost unanimous, with only Justice Clarence Thomas dissenting, there was significant disagreement among the justices under the surface. Roberts, for instance, joined the liberals to partially dissent from the opinion, saying that he thought the providers should be able to sue other state officials, like the attorney general. And he seemed much more concerned about the law’s downstream consequences, writing that the “clear purpose and actual effect” of the abortion ban was to “nullify” the Supreme Court’s rulings. “It is the role of the Supreme Court in our constitutional system that is at stake,” he wrote. And in a separate opinion, the liberals agreed with the decision to let the lawsuit go forward but blasted the other conservatives for failing to act sooner. 

So in one sense, the decision is a win for abortion providers in Texas, who can now challenge the ban in federal court. But as I wrote in November, a ruling that allows at least some state court officials to be sued isn’t really a surprise, since the structure of the law could be used by other states to circumvent other constitutional rights — which could make it unappealing to uphold regardless of the justices’ views on the constitutionality of abortion. The justices’ continued willingness to leave the law in place, meanwhile, is a sign that much bigger losses for abortion-rights advocates could be coming.


What Texas’ abortion ban could mean for the rest of the country | FiveThirtyEight

Footnotes

  1. The court dismissed a separate lawsuit from the Biden administration as improvidently granted.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

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