Abortion Clinics Can Sue Over Texas Law but It Stays, Supreme Court Says

Texas abortion providers were given green light by the Supreme Court on Friday to pursue a federal lawsuit challenging the controversial law that bans abortion after six weeks of pregnancy.

The Supreme Court’s ruling did not deal directly with the legality of the law, known as SB8, which gives people the right to sue doctors who perform an abortion past six weeks so it remains in force for now.

Federal courts, on the other hand, now have the power to review their legal challenge against some of the defendants named in lawsuits.

S.B. 8, which contains no exceptions for rape or incest, authorizes citizens to file private lawsuits against persons/institutions who perform, aid, or abet an abortion after a fetal cardiac activity is detected,  and successful suits fetch at least $10,000.

Providers are allowed by the ruling to pursue a constitutional challenge in lower federal courts that, if successful, could prevent state licensing officials from seeking to enforce violations of the abortion ban.

The majority handed abortion providers a modest win in an 8-1 opinion by Justice Neil Gorsuchm but its practical impact was not immediately certain although some legal experts say the ruling had given Texas a roadmap for blocking these lawsuits.

According to Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, who called Texas’s abortion ban blatantly unconstitutional, no one in Texas could be sued to enjoin the law if Texas were to revise the statute to make clear that the licensing officials play absolutely no role in its implementing.

The opinion that Justice Clarence Thomas wrote separately says he would’ve dismissed the case. In another separate opinion, Chief Justice John Roberts and the court’s three liberals called Texas’s law unconstitutional under Roe v. Wade and other Supreme Court precedent.

A similar challenge brought by the Department of Justice was dismissed by the justices in a separate opinion. They also dismissed by majority’s ruling the abortion providers’ suits against Texas’s AG and a number of state court judges and clerks and a private citizen.

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