WASHINGTON (CN) — The Supreme Court authorized Texas abortion providers on Friday to proceed in their challenge of the state’s near-total ban on abortions, a rule that will remain in place while the case proceeds.
Issuing their decision just over a month after oral arguments, the justices still managed a split on somewhat idealogical lines. Justice Neil Gorsuch wrote the lead opinion, joined by Justices Samuel Alito, Brett Kavanaugh and Amy Coney Barrett. The liberal wing of the court joined an opinion concurring in judgment but dissenting in part by Chief Justice John Roberts. Justice Clarence Thomas issued his own partial dissent.
The narrow ruling allows the abortion providers to continue their suit against defendants with authority over medical licenses but rejects their effort against judges and clerks of the state court system.
“Eight justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners,” Gorsuch wrote.
The opinion finds that these defendants fall within the scope of Ex parte Young because they are officials who must take action against anyone found to have violates Texas’ Health and Safety Code.
“It appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity," the decision states. "Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8.”
Gorsuch called the abortion providers’ suit against state judges and clerks “troubling,” meanwhile, because of the lack of limiting principles.
“If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law," the Trump appointee asked, "what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws?”
While the decision lets abortion providers continue their challenge to the ban, it does not stop enforcement of the law, which still remains in effect.
The case by the abortion providers was consolidated for arguments with a separate challenge by the government after the Fifth Circuit blocked an injunction on the law in a 2-1 ruling. Though the court agreed to hear arguments in both challenges, it refused to reinstate the injunction. In doing so, it specified that arguments would focus not on the constitutionality of the law but rather issues brought about by the unique enforcement mechanism that has allowed it to evade judicial review.
In a separate ruling Friday, the justices dismissed the appeal from the Department of Justice, which sought to stop enforcement of the ban. Justice Sonia Sotomayor was the lone dissenter from this opinion, and she authored a partial dissent in the case that involved the abortion providers.
“The court should have put an end to this madness months ago, before S. B. 8 first went into effect,” the Obama appointee wrote, joined by Justices Stephen Breyer and Elena Kagan. “It failed to do so then, and it fails again today.”
All three justices joined with Roberts meanwhile to urge that the trial judge back in Texas act quickly on the case.
“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay,” Roberts wrote.
Roberts said the purpose of Texas’ law is to overturn the court’s rulings.
“The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” the Bush appointee wrote. “It is, however, a basic principle that the Constitution is the ‘fundamental and paramount law of the nation,’ and ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’”
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