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Supreme Court Rules Abortion Providers Can Sue Texas Over Abortion Ban

Justice Clarence Thomas offered the only dissenting opinion

Texas’s abortion ban will remain in effect after being cleared for legal challenges by the Supreme Court.

Texas passed one of the nation’s most stringent abortion restrictions on Sept. 1. Under the so-called heartbeat” law, or S.B. 8, abortions are prohibited after six weeks or when a fetal heartbeat is detected. There is an exemption for medical emergencies, but not for rape or incest.

Citizens are also allowed to sue anyone who helps a woman obtain an abortion for $10,000 in damages per instance. Critics said this clause amounted to bounty hunting while supporters said it set up private civil enforcement rather than establishing criminal penalties. 

Abortion providers and pro-abortion rights groups sued to stop the law from being enforced, asking the Court to consider the “urgency of the harm” it causes. They have also argued it is unconstitutional and violates precedent set by the Court in 1973’s Roe v. Wade decision. The Court had ruled that abortion could not be banned during the first trimester because of “the idea that a fetus typically could not survive outside the womb during that time,” per CNBC.

The law has not been used against an abortion provider in the weeks since it went into effect.

The court ruled 8-to-1 on Dec. 10 that abortion providers could sue the state over the law, S.B. 8, but did not take action to overturn the law as it stands. As part of their decision regarding Whole Women’s Health v. Jackson, abortion providers can bring pre-enforcement challenges against state licensing board officials, but not against other state officials, judges or clerks.

The court also dismissed a second lawsuit filed by the Biden administration in October seeking to block the law. 

The outcome is at best only a partial victory for abortion providers,” reports The Seattle Times. “The same federal judge who already has once blocked the law almost certainly will be asked to do so again. But then his decision will be reviewed by the 5th U.S. Circuit Court of Appeals, which has twice voted to allow enforcement of the abortion ban.”

Justice Clarence Thomas offered the only dissent, arguing that the suit should be dismissed against all defendants. 

The opinion was delivered by Justice Neil Gorsuch, who noted “in this preliminary posture, the ultimate merits question — whether S.B. 8 is consistent with the federal Constitution — is not before the court. Nor is the wisdom of S.B. 8 as a matter of public policy.”

“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,” wrote Chief Justice John Roberts.

There is a decent amount of back and forth between the opinions, which may explain why it took so long for these decisions to issue, “ noted Reason.

The court had heard arguments in the case last month.

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