SCOTUS Rules In Texas Pro-Life Cases: Abortion Providers Can Sue State, DOJ Challenge Dismissed, Law Can Remain In Effect

The Supreme Court issued its rulings on Friday concerning two cases regarding a Texas pro-life law that bans most abortions after fetal cardiac activity can be detected. 

The high court decided to allow abortion providers to continue with a lawsuit against the state, but it is allowing the legislation to stay in effect as the legal battles continue. “The ruling is procedural and will not be the final word on the law’s constitutionality,” Fox News reported. 

The Supreme Court also got rid of a challenge brought by the Department of Justice against the Texas pro-life measure, stating: 

The writ of certiorari is dismissed as improvidently granted. The application to vacate stay presented to JUSTICE ALITO and by him referred to the Court is denied.

It added:

JUSTICE SOTOMAYOR would grant the application to vacate stay in No. 21A85 and dissents from the dismissal of No. 21–588 as improvidently granted. 

As Justice Neil Gorsuch wrote in the court’s opinion for the Whole Woman’s Health v. Jackson case, “The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others.”

Fox News reported:

Justices Amy Coney Barrett, Samuel Alito, and Brett Kavanaugh backed Gorsuch’s opinion in full to round out a plurality opinion. 

Justice Clarence Thomas joined the court’s controlling opinion in part and dissented in part.

The Wall Street Journal reported:

In a splintered opinion, the court said the head of the state medical board and other licensing authorities could be sued before the law was enforced to test its constitutionality, despite Texas’ efforts to insulate the law from federal court review by assigning enforcement power to private litigants. While the justices said other state officials, including the attorney general, couldn’t be sued in the case, the opinion allows abortion providers to proceed with their challenge in federal district court.

The two cases concerning the law were brought before the Supreme Court last month. The high court had declined to halt the law but agreed to give the two cases expedited review.

Texas’ Heartbeat Act effectively outlaws abortion after the sixth week of pregnancy, when fetal cardiac activity can be detected. As The Daily Wire previously reported, “The Texas law allows citizens to sue abortion providers and those who ‘aid and abet’ illegal procedures for a financial reward if the lawsuit is successful.” 

The Supreme Court Justices questioned the law, and some wondered about the Justice Department’s action in suing a state during the arguments last month.

As the Daily Mail reported at the time, “Chief Justice John Roberts expressed concerns that the DOJ’s case was too broad and sought ‘an injunction against the world.’” 

“I share some of the concerns that have been voiced by my colleagues who say this case is very narrow, it’s rare, it’s particularly problematic,” Roberts told Elizabeth Prelogar, U.S. solicitor general. “But the authority you assert to respond to it is as broad as can be.” 

“It’s hardly traditional to get injunctions against judges, injunctions against everybody, right?” Roberts said. “That’s part of the relief you seek, isn’t it? … So you’re seeking an injunction against the world?”

Justice Brett Kavanaugh also said the DOJ’s lawsuit was “unusual” and questioned what power the department had to issue a lawsuit over a state’s law. Kavanaugh also pointed to an amicus brief filed by Second Amendment proponents in support of the abortion providers who were concerned states could copy the Texas pro-life law and use it to essentially get rid of constitutional rights.

The discussion also involved a previous case from 1908 called “Ex Parte Young.”

As reported by The New York Times, in that case:

The Supreme Court held that state officials could be sued in federal court to prevent them from trying to enforce unconstitutional laws.

However, the court’s majority decision, written by Justice Rufus W. Peckham, said that this mechanism could not be used to “restrain the state court from acting in any case brought before it either of a civil or criminal nature.”

He added: “An injunction by a federal court against a state court would violate the whole scheme of this government, and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined.”

During the arguments, Justice Clarence Thomas said, “Ex parte Young makes clear that federal courts cannot enjoin state judges.”

As Fox News reported at the time, “[Texas Solicitor General Judd] Stone argued Ex parte Young does not provide a way for federal court intervention, at least until state courts first get a say.” 

The Supreme Court was reportedly making a decision on whether the law is able to be challenged in federal court. 

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