In a rare Friday decision, the U.S. Supreme Court ruled that Texas abortion providers can sue the state’s “executive licensing officials” to block S.B. 8, the state’s six-week abortion ban. The Court, however, also denied the Biden Administration’s request to block the law entirely. Critically and horribly, the Court refused to put a stay on the law blocking its enforcement in Texas while the litigation plays out.
This means the people of Texas still cannot obtain an abortion after six weeks of pregnancy—a point at which most pregnant people don’t even know they’re pregnant—unless they travel out of state.
While the decision allows the abortion provider lawsuit to go forward, it does limit who can be sued—state court judges, clerks, and the state attorney general cannot be sued by providers. The only remaining defendants are those with "specific disciplinary authority over medical licensees."
Associate Justice Sonia Sotomayor blasted the majority for allowing the law to stand while it’s fought in the courts, and for dismissing the Justice Department’s suit. “The Court should have put an end to this madness months ago, before S.B. 8 first went into effect. It failed to do so then, and it fails again today,” she wrote in her dissent.
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"Although some path to relief not recognized today may yet exist, the Court has now foreclosed the most straightforward route under its precedents,” Sotomayor wrote.
I concur in the Court’s judgment that the petitioners’ suit may proceed against certain executive licensing officials who retain enforcement authority under Texas law, and I trust the District Court will act expeditiously to enter much-needed relief. I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review. By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.
The law bans abortion after six weeks, a point when most people don't even know they’re pregnant. The law makes no exceptions for rape or incest, and in a horribly devious twist, they’ve structured the law
to make fighting it in court difficult. The Texas law actually bars state officials from enforcing it, turning that job over to citizen vigilantes, instead.
It allows private individuals to sue abortion providers or anyone who "aids and abets" any person in getting an abortion—from doctors to nurses to the receptionist at a clinic, the cab driver, and anyone who helped to pay for it. The bounty for the vigilante—who can be absolutely anyone, with no connections at all to the pregnant person in question—is $10,000 plus legal fees. Should the defendant win in a case, they're not entitled to legal fees.
Associate Justice Neil Gorsuch wrote the opinion.