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In a split procedural decision regarding the case of Whole Woman’s Health v. Jackson, the Supreme Court will allow the Texas heartbeat law to remain in place but also ruled that abortion providers can pursue pre-enforcement challenges to the law in federal court. In a related case known as U.S. v. Texas, the Court denied a petition by the U.S. Justice Department to block the Texas law.
The Texas heartbeat law, also known as S.B. 8, allows private parties to civilly sue abortion providers who perform an abortion after a fetal heartbeat is detected, which is typically around six weeks’ gestation. Just before the pro-life law went into effect on September 1, the Supreme Court refused to step in and block it. The plaintiffs in this case petitioned the Court again for an injunction, but since the Court was tasked with only reviewing the orders of various cases that have been brought in lower courts, not the constitutionality of the law “nor the wisdom of S.B. 8 as a matter of public policy,” it allowed the law to remain in place. As such, enforcement of the law will continue as it has for the past three months.
The Court ruled that abortion providers may continue to bring lawsuits in lower courts. However, citing the 11th Amendment’s doctrine of sovereign immunity, the Court ruled that the plaintiffs may only bring a lawsuit against certain executives who oversee medical licensing and not state and local government officials, such as county clerks. It also dismissed the lawsuit against Attorney General Ken Paxton since the state is not tasked with enforcing this law.
The Court also dismissed the Biden administration’s challenge of the law in United States v. Texas, ruling that it did not have standing to intervene in the case.
For now, the Texas abortion law remains in effect, and it will face a slow legal battle in the lower courts to determine its constitutionality. A federal district judge had previously ruled in favor of abortion providers in blocking the law, while the Fifth Circuit U.S. Court of Appeals has twice allowed the law to stand.
The law’s unique enforcement mechanism has not yet been ruled as unconstitutional, of course, and this delay in judicial review could embolden other states to use this strategy as a template to put their own heartbeat laws into effect.
However, any challenges to the Texas law could be rendered moot, depending on how the Court rules in Dobbs v. Jackson Women’s Health Organization. That case, which was argued before the Supreme Court on December 1, examines Mississippi’s ban on abortion after 15 weeks. If the justices rules in favor of the Mississippi law, it could lead the Court to overturn Roe v. Wade. If that happens, Texas would have the autonomous jurisdiction to decide exactly which abortion restrictions it wants to put in place.
Justice Brett Kavanaugh seemed to express concern over the private enforcement mechanism of the Texas law, saying, “There’s a loophole that’s been exploited here. It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights — if this position is accepted here.”
Justice Sonia Sotomayor dissented both on the Court’s decision to allow enforcement of the law and in the decision to dismiss the Biden administration’s case against the law.
Chief Justice Roberts, who wrote the dissent to Whole Woman’s Health v. Jackson and was joined by Justices Sotomayor, Breyer, and Kagan, may have given insight into his thinking on Roe v. Wade when he argued, “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the ‘fundamental and paramount law of the nation,’ and ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’
He continued, “Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.’ 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.”
However, Justice Neil Gorsuch, writing for the Court, said, “To the extent Justice Sotomayor seems to wish even more tools existed to combat this type of law, Congress is free to provide them.”
He added, “But one thing this Court may never do is disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day. At the end of that road is a world in which ‘[t]he division of power’ among the branches of Government ‘could exist no longer, and the other departments would be swallowed up by the judiciary.’”