Challengers may continue fighting Texas abortion law

December 10, 2021
Two pro-choice demonstrators are surrounded by anti-abortion demonstrators outside the Supreme Court on November 01, 2021, in Washington, D.C.


WASHINGTON – The Supreme Court on Friday said that clinics challenging a Texas ban on abortion after six weeks of pregnancy could continue that fight in lower federal courts but allowed the law to remain in place for now. 

The move, which sends the underlying controversy back to a lower court, came more than a month after the high court heard arguments in a pair of challenges to the law, including one from the Biden administration and another from abortion clinics who said the measure effectively outlawed abortion in Texas.

Despite the attention the Texas ban has received from both anti-abortion and abortion rights advocates, the two cases dealt with procedural questions about who could sue and be sued, not the law’s constitutionality. During oral arguments on Nov. 1, the justices wrestled for three hours over those issues because of the possible impact beyond abortion.

Since that time, the court heard arguments about Mississippi’s ban on most abortion after 15 weeks of pregnancy. In that case, Mississippi has asked the court to overturn the 1973 Roe decision that established the constitutional right to abortion. A majority of the court indicated it is inclined to at least uphold the Mississippi law.   

More:Some Supreme Court justices skeptical of Texas abortion law, impact on rights

More:Supreme Court declines to block Texas abortion law over Sotomayor dissent 

The Texas law, signed by Republican Gov. Greg Abbott in May, bans abortion once cardiac activity is identified in an embryo, usually around six weeks of pregnancy. The law includes no exception for rape or incest but permits the procedure for “medical emergencies.”

But the cases at issue dealt with provisions of the law other than abortion, namely its enforcement. Rather than outlawing the procedure after six weeks and requiring state officials to enforce the prohibition, Texas authorized and incentivized private citizens to sue providers, nurses and anyone else who helped a person obtain an abortion in violation of the law. 

That effectively shut down abortions in Texas as clinics owners said they were concerned about potential liability. Many Texans seeking an abortion crossed state lines and clinics in several surrounding states reported an increase in patients.  

Texas’ enforcement mechanism complicated efforts to temporarily block the law because it isn’t clear who will sue to enforce it until such a suit is actually filed. 

Similar gestational age bans on abortion in other states have been struck down for violating the Supreme Court’s precedents in Roe v. Wade and Planned Parenthood v. Casey, which held that people may get an abortion up to the point a fetus is viable outside the womb, about 24 weeks.

A 5-4 majority of the court on Sept. 1 denied a request by abortion clinics to halt the Texas law on jurisdictional grounds. The New Orleans-based U.S. Court of Appeals for the 5th Circuit declined to stop the law from taking effect.


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