A divided Supreme Court on Friday refused to block a Texas law that banned most abortions there, but narrowly opened the door for abortion providers to challenge it before a federal judge.
The conservative majority in the court said abortion providers can sue state licensing officials, but not state judges and clerks who are responsible for handling legally-motivated prosecutions.
Chief Justice John G. Roberts Jr. and the Three Liberals were partly dissenting, saying the court should have gone further to allow challenges to the law. Roberts said Texas was seeking to “overturn the decisions of this court” that women have the right to choose abortion.
In a related case, the court dismissed a lawsuit brought by the Biden administration that sought to end the Texas law known as SB 8. It makes abortions illegal after six weeks and allows private lawsuits against the doctors who rape her.
Judge Sonia Sotomayor, speaking in disagreement, said âthe court should have ended this madness months ago, before SB 8 first came into effect. He failed to do so then, and he still fails today.
The 5-4 split in the court may well reflect the split over whether to overturn Roe against Wade and the abortion right. In arguments last week in a Mississippi case, the five conservatives appeared ready to overturn the abortion rights.
At the beginning of September, the same five judges stepped aside and authorized the entry into force of the Texas law, even if it deprived pregnant women of their right to choose abortion. They included Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, the three people appointed by President Trump.
The issue in the Texas case was whether a federal judge could block the state’s abortion law as unconstitutional. Due to the unusual law enforcement mechanism, it was not clear who could be prosecuted. The law was not enforced by state officials, but rather by private prosecutions.
Speaking for the fractured court on Friday, Gorsuch said abortion providers should continue their challenges in Texas state courts.
“This court has never recognized an unconditional right to pre-execution review of constitutional claims in federal court,” he wrote in Whole Woman’s Health vs. Jackson.
When judges heard the arguments last month in the Texas case, Kavanaugh and Barrett looked like they would vote to block the law, or at least pave the way for a successful challenge. But instead, they joined with the more conservative judges to allow only the smallest challenges.
It was similar to the Court’s approach in September.
In that previous order, the court said the law raised “complex and novel procedural questions” because the authorities had no direct role in enforcing the ban on most abortions.
Their decision drew sharp criticism and perhaps prompted at least some judges to reconsider the matter. To many, it seemed the new conservative majority had allowed the nation’s largest red state to ignore nearly 50 years of legal precedent that said abortion was a constitutional right.
Responding to their initial rebuff, lawyers for the abortion providers returned to the High Court and urged the judges to expedite a hearing on procedural issues raised by a law that is enforced by what they called a program of abortion. private bonuses.
The court heard arguments from both sides on November 1, when it emerged that most judges were ready to block the law. Kavanaugh said gun rights and religious freedom could be called into question if the court allowed states to use Texan-style lawsuits as a means to overturn constitutional rights.