A divided Supreme Court late Wednesday declined to block a restrictive Texas law banning abortions after a fetal cardiac activity can be detected, or as early as six weeks into pregnancy, and allowing anyone in the country to sue abortion providers or others who help women get the procedure after that time frame.
The vote was 5-4, with Chief Justice John Roberts dissenting with the three liberal justices, Elena Kagan, Stephen Breyer and Sonia Sotomayor. Each wrote a separate opinion opposing the majority decision.
The lack of action by the nation’s high court deals a blow to Roe v. Wade, the landmark 1973 Supreme Court ruling that legalized abortion nationally, essentially legalizing the law’s language to incentivize private litigation to cripple abortion care and support services.
In a brief, unsigned order, the court said that abortion providers "have raised serious questions regarding the constitutionality of the Texas law." But those arguments did not adequately address "complex and novel" procedural questions presented by the case, it said, including whether state officials and anti-abortion activists would try to enforce the law in a way that would allow the court to intervene.
The law, known as Senate Bill 8, went into effect at midnight Wednesday, after the Supreme Court did not act to block it. Abortion rights advocates say the measure is the most restrictive anti-abortion law in years, with provisions that amount to a near-total ban on abortion in the state.
The law prohibits abortions after fetal cardiac activity is detected, which occurs as early as six weeks into pregnancy — before many women even know they are pregnant. Unlike other states' anti-abortion laws, Texas’ unique ban is enforced through private citizens' lawsuits against abortion providers rather than through state government. The first-of-its-kind language allows anyone, even those outside the state, to sue abortion providers or others who help women get abortions after the six-week limit and seek $10,000 per defendant.
In his dissent, joined by Breyer and Kagan, Roberts said the enforcement provisions were "not only unusual, but unprecedented" and appeared designed "to insulate the state from responsibility for implementing and enforcing the regulatory regime." He said he would have prevented the law from going into effect "so that the courts may consider whether a state can avoid responsibility for its laws in such a manner."
Sotomayor called the court's decision "stunning."
“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” she wrote.
Abortion providers in Texas filed an emergency request Monday asking the Supreme Court to block the law, saying the measure “would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85 percent of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close.”
The plaintiffs — led by the Center for Reproductive Rights, Planned Parenthood Federation of America and the American Civil Liberties Union and including multiple Texas abortion providers — went to the Supreme Court after the 5th U.S. Circuit Court of Appeals refused to block enforcement of the law.
Under the measure, targets of lawsuits could include not only organizations that help pay for abortions and practical support groups that provide women in need with transportation, lodging, recovery care and child care, but also doctors, nurses, domestic violence counselors and even friends, parents, spouses and clergy members who give aid such as driving a woman to a clinic or providing counseling about whether to have the procedure.
Abortion groups that provide those services say the law would cripple their ability to operate by allowing abortion opponents to flood the courts with lawsuits to harass doctors, counselors and family and friends of those seeking the procedure.
Abortion advocates have said the law is unconstitutional. Prior landmark rulings by the Supreme Court made it illegal for states to ban abortion before a fetus is viable, which generally happens at about the 24th week of pregnancy.
But S.B. 8 was designed not to criminalize abortions outright after six weeks, allowing the law to evade that standard. Rather, critics say it was written to incentivize civil lawsuits at the municipal, county and state levels — forcing abortion supporters to pay potentially crippling costs to defend themselves regardless of the outcome.
That language also makes it difficult for abortion care advocates to fight back against the law’s implementation. For example, with a traditional ban enforced by a state government, plaintiffs would sue the law enforcement entities to block the law from going into effect. In this case, because the law is enforced by lawsuits from private citizens, plaintiffs have resorted to suing a large number of state and local courts in hopes of blocking the suits from being filed. Experts said numerous loopholes could still exist that would allow anti-abortion lawsuits under the state law.
The law is also uniquely designed to put defendants at a financial disadvantage, requiring them to pay their own as well as the plaintiffs’ legal fees if the latter should win. All damages, meanwhile, would go right into a plaintiff’s pocket, and those thought to be helping women get abortion care could be sued multiple times by different parties.