Supreme Court Again Refuses to Block Texas Abortion Law

WASHINGTON — The Supreme Court on Friday once again refused to immediately block a Texas law that bans most abortions after six weeks. But in an unusual move, the justices agreed to fast-track their consideration of appeals from the Justice Department and abortion providers in Texas, scheduling arguments for Nov. 1.

The justices will now be grappling with two high-profile abortion cases in the space of a month. The case from Texas will require them to sort through complex procedural questions prompted by a novel law drafted to avoid review in federal court — an approach to restricting abortion that other states are also considering.

Then, on Dec. 1, the court will hear a challenge to a Mississippi law that bans abortions after 15 weeks and that anti-abortion activists hope will lead the court’s expanded conservative majority to overturn or undermine the constitutional right to abortion established by Roe v. Wade in 1973.

The court’s decision not to bar enforcement of the Texas law was at least a short-term victory for anti-abortion forces. As a practical matter, it means that the procedure will remain all but unavailable for now in the state despite the court’s own precedents forbidding states from banning abortion before fetal viability, at around 23 weeks.

The longer-term fate of the Texas law remains unclear. The questions the justices agreed to decide concern whether Texas can insulate the law from review in federal court through a unique structure that delegates enforcement of the abortion ban to the general public rather than to state officials.

The justices did not agree to consider the constitutionality of the Texas law, known as Senate Bill 8. But if they allow the federal government or abortion providers to sue, lower courts would presumably strike down the law under the Supreme Court’s precedents.

By agreeing to fast-track its consideration of the dispute, the court appeared to signal that it sees the Texas law as raising urgent questions.

Only Justice Sonia Sotomayor filed a dissent from the court’s refusal to block the law in the meantime.

“For the second time, the court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas,” she wrote. “For the second time, the court declines to act immediately to protect these women from grave and irreparable harm.”

There may have been elements of compromise in the court’s actions. It takes the votes of only four of the nine justices for the court to agree to give a new case a full hearing, and the four justices who had dissented when the court considered an earlier effort to block the Texas law — Chief Justice John G. Roberts Jr. and the court’s three more liberal members — were presumably ready to supply those votes.

The justices have also come under intensifying criticism for dealing with important issues not through their regular process of issuing elaborate decisions following full briefing and oral arguments but rather in a more rushed way on their so-called shadow docket. Such cases are often decided in orders that can contain little or no reasoning. Until now the justices were considering the Texas case on such an emergency basis.

Cases heard through the regular process — the “merits docket” — are usually argued months after the court agrees to hear them, and the court’s decision in the Texas case to schedule an argument just 10 days after granting review was probably the product of negotiation.

The court rarely acts that fast, and the exceptions tend to come in significant cases like Bush v. Gore, the 2000 case that handed the presidency to George W. Bush, and the Pentagon Papers case in 1971, which rejected the Nixon administration’s efforts to block publication of a secret history of the Vietnam War.

In its brief order on Friday, the court said it would decide this question in the federal government’s appeal: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials or all private parties to prohibit S.B. 8 from being enforced?”

It said it would defer a decision on whether to block the law “pending oral argument.” The court turned down a request from officials in Texas to use the cases to decide whether to overturn the right to abortion established in Roe.

Amy Hagstrom Miller, the president of Whole Woman’s Health, which operates abortion clinics in Texas, expressed disappointment with Friday’s developments.

 “The legal  limbo is  excruciating  for both patients and our clinic staff,” she said. “Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come. We’ve had to turn hundreds of patients away since this ban took effect, and  this ruling means we’ll have to keep denying patients the abortion care that they need and deserve.”

The Texas law was designed to evade review in federal court.

Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. However, the Texas law, which makes no exceptions for pregnancies resulting from incest or rape, bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.

The patient may not be sued, but doctors, staff members at clinics, counselors and people who help pay for the procedure or drive patients to it are all potential defendants. Plaintiffs do not need to live in Texas, have any connection to the abortion or show any injury from it, and they are entitled to $10,000 and their legal fees if they win. Defendants who win their cases are not entitled to legal fees.

The Supreme Court’s earlier encounter with the case left the justices bitterly divided.

In an unsigned opinion in that earlier case, the five-justice majority cited “complex and novel” procedural obstacles to blocking the law and stressed that it was not ruling on the constitutionality of the law.

The majority wrote that its ruling “in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” Officials in Texas have said that providers can challenge the law by violating it, getting sued and asserting the law’s unconstitutionality as part of their defense.

All four dissenting justices filed opinions in the earlier case.

“The court’s order is stunning,” Justice Sotomayor wrote in her dissent at the time. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

After the Supreme Court rejected the providers’ request for emergency relief, the Justice Department filed its own challenge to the law, one that it said was not subject to the procedural barriers the providers had faced.

On Oct. 6, Judge Robert L. Pitman of the Federal District Court in Austin ruled for the federal government, granting it a preliminary injunction forbidding the state, its officials and private individuals acting in concert with them from enforcing the law.

“That other courts may find a way to avoid this conclusion is theirs to decide,” he wrote. “This court will not sanction one more day of this offensive deprivation of such an important right.”

A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, stayed Judge Pitman’s ruling, reinstating the law. The Justice Department then filed an application asking the Supreme Court to lift the stay.

“S.B. 8 is plainly unconstitutional under this court’s precedents,” Brian H. Fletcher, the acting solicitor general, wrote. “Texas has not seriously argued otherwise.”

Ken Paxton, Texas’ attorney general, responded that the federal government was powerless to challenge the state’s abortion law.

“At bottom, the federal government’s complaint is that S.B. 8 is difficult to effectively enjoin,” Mr. Paxton wrote. “But there is no requirement that a state write its laws such that they can be easily enjoined.”

In their separate suit, the abortion providers, after losing a first round in the Supreme Court, filed a new request last month, asking the justices to hear their challenge quickly, bypassing the appeals court, using a procedure called “certiorari before judgment.”

That procedure is rarely used, typically in cases involving national crises like President Harry S. Truman’s seizure of the steel industry and President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor.

The court used the procedure in both of the cases it will hear on Nov. 1, Whole Woman’s Health v. Jackson, No. 21-463, and United States v. Texas, 21-588.

The question the court will answer in the providers’ appeal is “whether a state can insulate from federal court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohi­bition through civil actions.”

In her dissent on Friday, Justice Sotomayor wrote that the court was right to schedule arguments to decide whether the federal courts can review the law.

“The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now,” she wrote. “These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether.”