Leaving unsettled a pregnant woman’s constitutional right to an abortion, the Supreme Court on Friday allowed Texas to continue for now to enforce the strictest ban in the nation but cleared the way for a variety of new court challenges to it.
While the Justices split in at least a half-dozen different ways, the overall result was that the Court’s five most conservative members were clearly in control, with the less-conservative Chief Justice John G. Roberts parting ways with them on key points.
That outcome was at least a strong hint that, with or without the Chief Justice, the five other conservatives will be in a commanding position later in this term when the Court is expected to rule – in a case from Mississippi — on the fundamental constitutional question of whether to end the right to abortion altogether, or at least to narrow its scope significantly.
The Mississippi case was heard on December 1, but is not expected to be decided until later in the term, perhaps as late as June or early July. The Court took no action on that case on Friday. The two cases from Texas decided today were heard on November 1, and were being reviewed on a highly expedited schedule.
In the meantime, depending upon how new legal action unfolds in Texas state courts and in federal courts serving that state, thousands of pregnant Texas women will have access to almost no abortions for weeks and maybe longer because that state’s very restrictive law remains in effect. The law bans all abortions after six weeks of pregnancy – far earlier in pregnancy than the Supreme Court has ever allowed a ban to take effect.
The Supreme Court, in one of Friday’s results, refused a request by the Biden Administration to temporarily block enforcement of the ban while court challenges go on. Yesterday, a state judge in Austin struck down – mainly under state law – the enforcement scheme for the state ban (it is enforced only by private individuals, not state officers), but the judge did not actually block enforcement while appeals go ahead in higher state courts. To complicate the situation further, abortion clinics or advocates case renew their request to block the law in a new round in lower courts that the Supreme Court allowed on Friday.
The Court, in 49 pages spread out over five separate opinions or orders, reached these results on the Texas ban:
** By a vote of 8-to-1, the Court allowed abortion clinics and doctors and abortion rights activists to sue four state medical licensing officials to challenge the after-six-weeks ban and the scheme that allows only private individuals to enforce the ban. Only Justice Clarence Thomas would have barred that challenge altogether.
** By a vote of 5-to-4, the Court barred that challenge from aiming at any Texas officials other than the four licensing officers. The dissenters argued that other state officers should not have immunity to these challenges.
** These further legal actions by the clinics, doctors and advocates were allowed to go forward in a federal trial court in Austin and, perhaps, in new proceedings in the state court in Austin involved in yesterday’s ruling against the enforcement scheme and in state appeals in that case. These reopened lawsuits can make any arguments the lawyers wish to make under the federal Constitution and under Texas state law or its constitution.
** By a vote of 8-to-1 (but the vote might have been closer because not all votes are necessarily made public), the Court said it had been wrong in taking on the appeal by the Biden Administration in a separate case challenging the ban and its enforcement mechanism. This specific action sent that case back to a federal appeals court to take into account Friday’s opinions and order. Justice Sonia Sotomayor was the only member of the Court to publicly note a dissent in that federal government case, but she wrote no opinion to explain.
** However, Justice Sotomayor did write a 13-page separation opinion (joined by two other liberal members of the Court, Stephen G. Breyer and Elena Kagan) in the separate case by the abortion clinics and doctors. She objected to continued enforcement of the ban and to the limits the majority had put on who could now be sued. It did not appear that the Chief Justice on Friday had taken a public position on continued enforcement, but he had previously said the law should be blocked while challenges go forward in court. In any event, his vote was not needed to make a five-Justice majority allowing the law to remain in effect.
The controlling majority opinion was written by Justice Neil M. Gorsuch, who is generally quite conservative but now and then moderates those views. It was joined by Justice Samuel A. Alito, Jr., one of the most conservative, and the two most junior Justices – Brett M. Kavanaugh and Amy Coney Barrett – who are considered to be generally conservative but have not had time to express their views fully.
The majority opinion made no assessment of the constitutionality of either the ban or the mechanism for enforcing it, leaving that to lower courts to deal with first. The majority said it was not going to “prejudge” any of the further proceedings.
The Gorsuch opinion was written in restrained judicial tones, moving from point to point without stirring rhetoric.
Justice Thomas, who is widely considered to be the most conservative member, provided a fifth vote for the outcome but, in an eight-page opinion speaking only for himself, said he would have ruled that no official in any part of Texas state government could be sued over the ban, and that the clinics and doctors had no right to sue at all in federal court. Those points failed for lack of the minimum five votes.
Chief Justice Roberts wrote a four-page opinion, joined by Justices Breyer and Kagan, arguing that the entire Texas law – the ban and the enforcement scheme – were a clear attempt to “nullify this Court’s rulings” going back to 1973, establishing a woman’s constitutional right to end a pregnancy.
He noted that, as long ago as 1803, and the Court’s famous decision in Marbury v. Madison, the Court had declared that it had the final say on what the Constitution means and that that overrides any contrary state action. It did not matter, though, he said, that it was the abortion right that was involved in this particular controversy. He wrote: “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.”
