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Supreme Court Says Abortion Providers Can Challenge Texas’s Restrictive Law

The law will continue to be enforced until a lower court can place a stay on it.

A pro-choice demonstrator is seen outside of the Supreme Court in Washington, D.C., on November 1, 2021.

The United States Supreme Court has announced that it will vacate lower court rulings and allow abortion providers to sue the state of Texas over a highly restrictive abortion bill that bans the procedure after six weeks of pregnancy.

Although that process will be allowed to move forward, the Court said it won’t stop enforcement of the law in the meantime. The decision not to halt the law means that the restrictions will remain in place unless a lower court issues a ruling that would place a stay on the law sometime in the future.

The Friday morning decision, issued with eight justices in agreement, took note of a 1908 Supreme Court precedent that says petitioners can challenge state laws by suing state officials. Justice Clarence Thomas was the only dissenter.

Texas lawmakers sought to avoid challenges to the abortion law by placing the onus of enforcement on private individuals, allowing them to sue abortion providers or anyone who helps someone get an abortion in the state for sums of up to $10,000. The law bans abortion after the sixth week of pregnancy and makes no exceptions for rape or incest, making it the most restrictive anti-abortion measure in the U.S.

Although most of the justices agreed that abortion providers should be able to sue the state over the law, some dissented with allowing the law to remain in place, including Justice Sonia Sotomayor.

In her dissent, Sotomayor referenced the Court’s failure to block enforcement of the law back in September.

“The Court should have put an end to this madness months ago, before [Texas’s law] first went into effect,” Sotomayor wrote. “It failed to do so then, and it fails again today.”

By refusing to place a stay on the law, “the Court effectively invites other States” to use Texas’s restrictive law as a “model for nullifying federal rights,” Sotomayor said, adding that “the Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

The Court’s opinion on the Texas law comes shortly after it heard arguments on a Mississippi abortion law, which restricts abortion access after 15 weeks of pregnancy. In that case, the Court is considering overturning the abortion rights protections established in the landmark Roe v. Wade decision in 1973. Observers of the case’s proceedings have suggested that the conservative bloc justices, who currently comprise a majority of the High Court’s bench, are prepared to undo those precedents.

The Court’s ruling on the Texas law comes just a day after a separate ruling by a Texas judge, who found that the law was not compliant with the state constitution. In an opinion issued on Thursday, Texas District Court Judge David Peeples wrote that the statute was an “unlawful delegation of enforcement power to a private person.”

Peeples also noted that the law’s unique and strategic framework could be used to curtail a number of other constitutionally protected rights, including marriage rights, gun ownership and freedom of speech.

“We are a diverse and creative people and it seems naïve to hope that these procedures will be cabined voluntarily,” Peeples said.

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