Supreme Court allows Texas abortion lawsuit to proceed, law still in place

The Supreme Court granted wins to both sides of the legal battle over the Texas abortion law Friday, allowing a lawsuit against the law to proceed while leaving the law in effect. The court heard arguments on whether abortion providers could sue over the law last month. The vote was 8-1 to allow the lawsuit to proceed, with only Justice Clarence Thomas voting the other way. The court was more divided on whom to target with a court order that ostensibly tries to block the law. The court ruled 5-4 that Texas licensing officials may be sued, but dismissed claims against state court judges, court clerks and Attorney General Ken Paxton.

“The petitioners have not identified any enforcement authority the attorney general possesses in connection with S.B. 8 that a federal court might enjoin him from exercising,” the Supreme Court wrote in its ruling. “Nor have the petitioners identified for us any “rule or order adopted by the” Texas Medical Board that the attorney general might enforce against them.”

Chief Justice John Roberts joined the three liberal justices in the minority on the 5-4 decision. In their dissent, they said the purpose of the Texas law was “to nullify this court’s rulings” on abortion.

“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,” Roberts wrote.

The outcome is at best only a partial victory for abortion providers. The same federal judge who already has once blocked the law almost certainly will be asked to do so again. However, his decision is then expected to be reviewed by the 5th U.S. Circuit Court of Appeals, which has twice voted to allow enforcement of the abortion ban. The case could return to the justices from there.

So far, there have not been five votes on the nine-member court to put the law on hold while the legal fight plays out. Friday’s Supreme Court abortion lawsuit ruling came a day after a state court judge in Texas ruled the law’s enforcement, which rewards lawsuits against violators by awarding judgments of $10,000, is unconstitutional. This ruling also left the law in place.