Supreme Court Says Challenge to Texas Abortion Law Can Proceed

December 10, 2021 by Dan McCue
Supreme Court Says Challenge to Texas Abortion Law Can Proceed
Pro-choice advocates outside the U.S. Supreme Court building, Nov. 1, 2021. (Photo by Dan McCue)

WASHINGTON — The U.S. Supreme Court ruled Friday that abortion rights activists can continue their challenge to Texas’ controversial “heartbeat” abortion law, but only against some of the originally named defendants.

To the disappointment of abortion rights advocates, however, the justice declined to reverse a Sept. 1 lower court ruling that allowed the law to go into effect despite pending legal challenges.

In the absence of even a preliminary stay, abortion clinics across the state have stopped performing the procedures, forcing women seeking abortions to travel out of state.

The ruling written by Justice Neil Gorsuch upholds part of a previous Court of Appeals ruling in the case, but strikes down another.


It also inspired a rash of concurrent and dissenting opinions penned by a number of the other justices.

Texas Senate Bill 8, which went into effect on Sept. 1, effectively bans most abortions in the state. 

It bans nearly all abortions after six weeks into a pregnancy, and allows no exceptions for pregnancies that result from rape, sexual abuse, incest or for those involving a fetal defect incompatible with life after birth.

The prohibitions in SB8 apply to anyone who performs or induces a prohibited abortion, anyone who “knowingly” “aids or abets” the performance or inducement of a prohibited abortion, and even anyone who “intends” to perform or aid a prohibited abortion. 

Additionally, instead of relying on the state’s executive branch to enforce the law, as is the norm in Texas and elsewhere, the state has deputized ordinary citizens to enforce the law, allowing them to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her constitutional rights. 

The majority opinion written by Gorsuch says eight justices held the case may proceed, but only against defendants with specific disciplinary authority over medical licensees.

The justices unanimously reject the notion that state-court judges and clerks could be named as defendants, and a majority concluded that Texas Attorney General Ken Paxton should also be dismissed as a defendant.

In Paxton’s case, Gorsuch wrote “The petitioners have not identified any enforcement authority the attorney general possesses in connection with S.B. 8 that a federal court might enjoin him from exercising.”

The justices also struck the sole private citizen defendant from the case, Mark Lee Dickson, with Gorsuch writing that “given that the petitioners do not contest Mr. Dickson’s sworn declarations stating that he has no intention to file an S. B. 8 suit against them, the petitioners cannot establish ‘personal injury fairly traceable to [Mr. Dickson’s] allegedly unlawful conduct.’” 

Gorsuch stressed, “In this preliminary posture, the ultimate merits question — whether S. B. 8 is consistent with the federal Constitution — is not before the court. Nor is the wisdom of S. B. 8 as a matter of public policy.”

Justice Clarence Thomas concurring in part and dissenting in part, wrote that he would have sent the case back to the lower court with instructions it be dismissed entirely. He would have also held that the providers lack a legal right to sue.

“To begin with, there is no freestanding constitutional right to pre-enforcement review in federal court,” he said. “Such a right would stand in significant tension with the longstanding Article III principle that federal courts generally may not give advisory rulings on the potential success of an affirmative defense before a cause of action has even accrued.”


“Second, even when there is an appropriate defendant to sue, a plaintiff may bring an action under Ex parte Young only when the defendant ‘threaten[s] and [is] about to commence proceedings.’ Our later cases explain that ‘the prospect of state suit must be imminent.’

“To sustain suit against the licensing officials, whether under Article III or Ex parte Young, petitioners must show at least a credible and specific threat of enforcement to rescind their medical licenses or assess some other penalty under S. B. 8. Petitioners offer nothing to make this showing,” Thomas said.

Roberts has an opinion joined by the three liberal justices — Stephen Breyer, Elena Kagan and Sonia Sotomayor — also concurring in part and dissenting in part. 

“Given the ongoing chilling effect of the state law,” they conclude, “The District Court should resolve this litigation and enter appropriate relief without delay.”

Later, the chief justice writes, “The clear purpose and actual effect of S. B. 8 has been to nullify this court’s rulings.” 

“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,” he says citing the landmark 1803 case Marbury v. Madison.

“Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery,” he said, citing another early Supreme Court case, United States v. Peters, from 1809.

“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts concludes.

Justice Sotomayor also wrote an opinion, concurring in part and dissenting in part.

In the dissenting section, she opines that while the court properly holds that the suit may proceed against the licensing officials, “it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.

“I dissent, however, from the court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a state enacts a law that chills the exercise of a constitutional right and aims to evade judicial review. By foreclosing suit against state-court officials and the state attorney general, the court effectively invites other states to refine S.B. 8’s model for nullifying federal rights.”

In other Supreme Court news, the court has announced that it will hear all oral arguments scheduled for the January and February sessions in the courtroom. 

Courtroom access will continue to be limited to the Justices, essential court personnel, counsel in the scheduled cases, and journalists with full-time press credentials issued by the Supreme Court. 

Out of concern for the health and safety of the public and Supreme Court employees, the Courtroom sessions will not be open to the public. The court will continue to closely monitor public health guidance in determining plans.


The court will provide a live audio feed of the January and February oral arguments. A link to the live audio feed will be available on the homepage of the court’s website.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.

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