Texas Abortion Law: Supreme Court allows challenge to proceed, but leaves law in place


Washington, D.C. Newsroom, Dec 10, 2021 / 12:34 pm

In a case that hinges on enforcement rather than abortion itself, the U.S. Supreme Court ruled 8 to 1 on Dec. 10 that abortion providers can continue their legal challenge of the Texas Heartbeat Act, but the restrictive abortion law will remain in effect in the meantime.

The court accepted the case, Whole Woman’s Health v. Jackson, “to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute,” the opinion of the court, delivered by Justice Neil Gorsuch, reads. “We conclude that such an action is permissible against some of the named defendants but not others.”

The defendants who can be sued are executive licensing officials “who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code,” including Texas’ abortion ban. State court clerks, state judges, and the Texas attorney general cannot be sued, the ruling states.

Gorsuch emphasized that the question of whether the Texas abortion law is consistent with the U.S. Constitution “is not before the Court.” Instead, the court’s ruling leaves the Texas law in place and enables lower courts to decide the constitutionality of it. 

The Texas Heartbeat Act, also known as S.B. 8, went into effect on Sept. 1 and restricts most abortions after the detection of a fetal heartbeat, which typically occurs around six weeks into pregnancy.  While the court initially declined to block the law from going into effect, it later considered two challenges to the law on an expedited basis. 

These challenges, heard by the court on Nov. 1, focused on legal procedure and the Texas law’s unique enforcement framework rather than on the legality of abortion itself.

The two cases — Whole Woman’s Health v. Jackson and United States v. Texas — highlighted the unique construction of Texas’ abortion law. Instead of relying on state officials, the law is enforced through private civil lawsuits. It also allows for awards of at least $10,000 for plaintiffs who successfully sue those who perform or “aid and abet” abortions after a fetal heartbeat can be detected. 

In Whole Woman’s Health, abortion providers wanted the court to block state clerks and judges from acting on civil cases filed against alleged violators of the state ban. In the other case, the Biden administration asked to be allowed to proceed with a federal lawsuit against Texas seeking to overturn the law.

On Friday, the court dismissed the federal government’s challenge “as improvidently granted,” meaning that the court should not have considered the case. Justice Sonia Sotomayer dissented.

In Whole Woman’s Health v. Jackson, Justice Clarence Thomas voiced dissent from the other eight justices. 

“In my view, petitioners may not maintain suit against any of the governmental respondents under Ex parte Young,” Thomas wrote.

The Ex parte Young decision was a topic of discussion during the case’s oral argument. While the Eleventh Amendment offers states sovereign immunity from federal lawsuits, that 1908 Supreme Court ruling established an exemption for instances where state officials are enforcing an unconstitutional state law. Here, the Texas law sets up private citizens as the law’s enforcers.

In the court’s opinion, Gorsuch wrote that the “petitioners’ theories for relief [against the Texas law] face serious challenges but also present some opportunities” and he went on to summarize the justices’ various positions in the ruling. 

While the court unanimously “rejects the petitioners’ theory for relief against state-court judges,” the justices, minus Thomas, decided that Texas licensing officials can be sued. More specifically, the decision names Stephen Carlton, executive director of the Texas Medical Board; Katherine Thomas, executive director of the Texas Board of Nursing; Cecile Young, executive commissioner of the Texas Health and Human Services Commission, and Allison Benz, executive director of the Texas Board of Pharmacy.

In a separate opinion, Chief Justice John Roberts, along with justices Stephen Breyer, Sotomayor, and Elena Kagan wrote that the “clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.”

The eight justices ruled that “petitioners may bring a pre-enforcement suit challenging the Texas law in federal court under Ex parte Young, 209 U. S. 123 (1908), because there exist state executive officials who retain authority to enforce it,” he wrote. “In my view, several other respondents are also proper defendants,” including the Texas attorney general and a court clerk.

Sotomayor, joined by Breyer and Kagan, wrote a separate opinion.

“While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general,” she wrote. “By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”

Pro-life leaders, such as Marjorie Dannenfelser, the president of the Susan B. Anthony List, reacted positively to the ruling.

“We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts,” she said in a statement. “Meanwhile, we anxiously await the Court’s decision in the Dobbs case in which the Court is directly considering the constitutionality of laws that protect unborn children and mothers prior to viability.”

The court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case that directly challenges Roe v. Wade, the 1973 ruling that legalized abortion nationside, on Dec. 1.

The case involves a Mississippi law restricting most abortions after 15 weeks and centers on the question of “Whether all pre-viability prohibitions on elective abortions are unconstitutional,” or whether states can ban abortion before a fetus can survive outside the womb. 

Kristen Day, executive director of Democrats for Life of America, also responded to Friday’s ruling in a statement.

“We are grateful that this law will continue saving lives while the legal challenges against it wind their way through the lower courts,” she said.

(Story continues below)

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Lila Rose, founder and president of Live Action, also reacted.

“Today, the Supreme Court refused to strike down the life-saving and democratically popular Texas Heartbeat law,” she said. “While the Court did give a roadmap for lower courts to put the law on hold, the opinion of the Court was crystal clear that this case was not commenting on the constitutionality of the abortion restriction itself.”

“The Court’s decision also allows the law to stay in effect as litigation continues, an important victory for life,” she said.

Katie Yoder

Katie Yoder is a correspondent in CNA’s Washington, D.C. bureau. She covers pro-life issues, the U.S. Catholic bishops, public policy, and Congress. She previously worked for Townhall.com, National Review, and the Media Research Center.


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