Supreme Court rules that abortion providers can federally challenge Texas' restrictive 6-week ban

• The Supreme Court on Friday ruled that abortion providers can move forward with their challenge to a Texas six-week abortion law.
• The court rejected the Biden administration's challenge to the same law.

The Supreme Court on Friday ruled that a federal lawsuit could proceed against a restrictive Texas law that bans abortions after six weeks of pregnancy, but the justices declined to outright block the law.

Though the law remains in effect for now, the Supreme Court decision represents a partial win for abortion-rights supporters and a blow to abortion opponents, as Texas can now face constitutional challenges to the ban.

Texas' law, known as SB 8, took effect on September 1. It has managed to stand so far because it was uniquely designed to avoid legal challenges. The law invites ordinary citizens, rather than state officials, to enforce the ban. That means any individual can sue an abortion provider or anyone who they believe "aids and abets" someone getting the procedure beyond the six-week mark, leaving state officials out of the equation. Successful plaintiffs will be rewarded at least $10,000, in addition to legal fees.

The court's decision on Friday was technical, and did not consider the constitutionality of the law. The justices voted 8-1 to allow abortion providers to move forward with their lawsuit against state officials in federal court. Conservative Justice Clarence Thomas dissented from the majority. Justice Neil Gorsuch, who was appointed to the bench by former President Donald Trump, delivered the majority opinion.

The court also made an exception in a 5-4 vote that Texas Attorney General Ken Paxton, a state court clerk, or a state judge, cannot be sued.

In a separate opinion, Justice Sonia Sotomayor, a liberal, blasted the court's decision to keep the law in place.

"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.

Chief Justice John Roberts, joined by the court's three liberals, wrote in another opinion that the "clear purpose and actual effect of S. B. 8 has been to nullify this Court's rulings."

"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," he wrote.

Friday's ruling comes after the court previously rejected a request from abortion providers to block the law on September 2 — one day after the law took effect — in a 5-4 decision. Roberts, along with the court's liberal wing, dissented from the majority at the time.

The majority argued that the ruling was procedural and the justices did not want to weigh in while the case was still being litigated in the lower courts.

"In particular, this order is not based on any conclusion about the constitutionality of Texas's law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts," the majority wrote in an unsigned opinion.

During oral arguments last month, however, the court appeared skeptical of Texas' position. Justice Brett Kavanaugh, who voted to keep the law in place in September, said that "a loophole that's been exploited here" and the question is should the court "close that loophole."

In another decision also handed down on Friday, the court rejected the Biden administration's challenge to the same law.

The Department of Justice sued the state of Texas on September 9 in a bid to strike down the abortion ban. A federal district judge blocked the law temporarily, but Texas swiftly appealed. The case was then brought to a federal appeals court, which reversed the decision and allowed the law to remain in place.

The DOJ then filed an emergency review at the Supreme Court to continue its bid, but the court dismissed the case on Friday.

The court is still due to hand down a decision by next June on a separate case involving a Mississippi law that bans abortions after 15 weeks of pregnancy, a challenge to the landmark 1973 ruling, Roe v. Wade, which legalized abortion in the United States.