At a moment when abortion rights across the nation are in peril, the U.S. Supreme Court’s ruling Friday allowing abortion providers to challenge a Texas law banning most abortions after six weeks might seem like a hopeful development for those who still believe that women should have autonomy over their bodies.
Yet for those hoping the court would reverse its Sept. 1 decision allowing the law to go into effect, the justices’ divided ruling provides little solace. Not only did the court allow the law to stand, it only barely cracked open a window for challenges, which are complicated because it hasn’t been clear who plaintiffs would sue under a novel law that lets citizens take other citizens to court for any perceived violations.
In an 8-1 decision, the high court, with Justice Clarence Thomas dissenting, allowed abortion providers to challenge the Texas law by suing state licensing officials who are authorized to take disciplinary actions against providers who violate the law, but declined in a 5-4 vote to let abortion providers sue other state officials such as judges, court clerks and the Texas attorney general.
The result is, at best, a Pyrrhic victory for abortion rights, one that still leaves open the very legitimate possibility that other states will attempt to pass similar legislation allowing anyone to bring a lawsuit in state court against anyone who performs an abortion or helps to make one possible.
Even allowing lawsuits against the state’s medical, pharmacy and nursing boards and the head of the Texas Health and Human Services Commission, has a glaring escape hatch. It provides a blueprint for other states to infringe on abortion rights by simply tweaking their laws to ensure that licensing officials have absolutely no enforcement ability and therefore won’t be subject to lawsuits.
“The dispute is over whether states may nullify federal constitutional rights by employing schemes like the one at hand,” Justice Sonia Sotomayor wrote. “The court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials.”
The court’s ruling will also have no impact on what Chief Justice John Roberts called the “ongoing chilling effect of the state law.” Senate Bill 8, which took effect in September, has prompted many doctors to stop performing abortions, has forced clinics in the state to stop performing all but very early abortions and has led women who can afford it to travel out of state to access their abortion rights. Researchers at UT Austin reported earlier this fall that the number of documented abortions had fallen by half in September compared to a year ago. Women who don’t have the means to travel will still be left helpless, with some inevitably seeking methods to end their pregnancies without medical supervision. Many of those already marginalized — people of color, people in rural communities, immigrants, and people simply struggling to make ends meet — will have no choice but to carry their pregnancy to term.
The court’s decision is even more alarming considering that a separate Mississippi case attempting to ban abortions after 15 weeks could overturn what was once considered settled law on abortion rights in this country: access to the procedure up until a fetus is viable. If Texas abortion providers were confident that Roe v. Wade, the landmark 1973 abortion rights, would be sustained, then there would be no need to stop performing the procedure. But this Supreme Court appears poised to throw precedent out the window and roll back abortion rights, potentially leaving providers with mountains of lawsuits.
For now, abortion providers’ best hope is a separate challenge to the law in Texas courts that will become even more critical after the Supreme Court’s decision. On Thursday, State District Judge David Peeples declared that parts of the law’s enforcement mechanisms are unconstitutional, but stopped short of blocking it entirely. That decision has been appealed by the advocacy group Texas Right to Life, and the conservative state Supreme Court may very well overrule Peeples’ decision.
In a 1913 decision, Justice Oliver Wendell Holmes wrote: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”
Roberts’ dissent Friday underscored Holmes’ prescient concern: by allowing Texas to prohibit a constitutional right within its borders “the constitution itself becomes a solemn mockery.”
Even those opponents of abortion rights who are cheering the defiant Texas law and the Supreme Court’s enabling of it should be wary of the far-reaching effects: we are staring at a grim future where any other fundamental right recognized by the Supreme Court could come under attack, and federal courts may well be powerless to stop it.
