The Supreme Court on Thursday rebuffed abortion providers’ latest legal maneuver in their challenge to Texas’s 6-week ban, which has sharply reduced abortion access in the state since taking effect nearly five months ago.
The order, issued without comment, was unsigned but appeared to divide the court along ideological lines, with the court’s three liberal justices writing in dissent.
At issue is a procedural fight over which tier of the lower federal courts the case should return to after a divided Supreme Court ruled last month that abortion providers could contest the ban in federal court and list Texas state licensing officials as defendants.
Abortion providers had asked the Supreme Court to send the case back to a federal district court, where the judge presiding over their challenge had previously blocked the Texas law. But the justices instead returned the case to the conservative U.S. Court of Appeals for the 5th Circuit, which has allowed the ban to remain while the case proceeds.
The 5th Circuit has since added a new layer of litigation. In a 2-1 vote, the federal appeals court panel asked the top Texas state court to interpret the law, S.B. 8, and determine whether state licensing officials are appropriate defendants.
This legal mechanism, known as state certification, has at a minimum prolonged the litigation and, depending on how the Texas Supreme Court rules, could wind up erasing abortion providers’ narrow path to federal court.
As the certification process got underway, abortion providers went back to the Supreme Court to ask that the justices return their case to the federal trial court to avoid undue delay, a request the majority denied in Thursday’s order.
Justice Sonia Sotomayor
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“Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the court allows the state yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation,” Sotomayor wrote. “The Court may look the other way, but I cannot.”
S.B. 8 authorizes citizens to file private lawsuits against those who perform, aid or abet an abortion after fetal cardiac activity is detected, typically around six weeks of pregnancy, before most women know they are pregnant. Successful suits under S.B. 8, which contains no exceptions for rape or incest, fetch at least $10,000.
Texas’s six-week ban conflicts with Roe v. Wade, the landmark 1973 ruling that recognized a constitutional right to abortion before a fetus is viable, typically around 24 weeks of pregnancy.
Nancy Northup, president of the Center for Reproductive Rights, which is representing abortion providers in the case hammered the court for allowing the continued deprivation of a constitutional right to abortion access.
“Texans have been without abortion access for almost five months now, and there is no end in sight because the Supreme Court has done nothing to stop this unconstitutional ban,” she said. “It is allowing the state of Texas to deprive people of a constitutional right.”
The restrictive law faces several ongoing state court challenges. But meanwhile the impact of S.B. 8 has fallen hardest on poor people, as well as Black and brown communities, and neighboring states have reported an influx of Texas residents seeking abortion, according to abortion rights advocates.
Updated at 5:27 p.m.
