The Texas law that bans abortions when a fetal heartbeat can be detected will remain in place for now, following the U.S. Supreme Court’s denial Thursday that the case be heard in a friendlier court.
The law, known as Senate Bill 8, or S.B. 8, was passed by the Texas Legislature last spring and took effect September 1, after the Supreme Court failed to respond to requests to block it. S.B. 8 relies on private citizens to enforce the abortion ban through lawsuits against anyone suspected of performing or aiding an abortion.
On November 1, the court heard oral arguments in the case, considering whether the Biden administration, the state of Texas and a number of Texas officials are the proper parties to sue or be sued.
In their December 10 judgement, the high court limited the ability of abortion providers to continue their challenge in the lower courts. The providers’ lawsuit can go forward against a group of state medical licensing officials, but not against the state-court judges and clerks whom the providers had also tried to sue, the court ruled.
This week, six of the nine justices turned down a request by abortion providers to order that a federal appeals court send the case, Whole Woman's Health v. Jackson, to a district court judge who earlier had put the law on hold. The one-sentence order assured that the litigation will remain at the Texas Supreme Court.
In dissents on Thursday, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan indicated that they would have granted the abortion providers’ request. Sotomayor said that by rejecting the providers’ request to return the case immediately, the Supreme Court “accepts yet another dilatory tactic by Texas.” Therefore, she said, the federal district court “will remain powerless to address S.B. 8’s unconstitutional chill on abortion care, likely for months to come.”
