The Supreme Court divided 5-4 on Wednesday, leaving a Texas ban on abortion after six weeks in place while litigation challenging the law continues in the lower courts.
The justices did not resolve whether the law halting abortions after a fetal heartbeat is detected was constitutional, but the high court noted that abortion providers fighting the law’s enforcement had sued defendants who are not likely to enforce the ban.
Chief Justice John G. Roberts Jr. and the court’s three Democratic appointees, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, would have blocked the law while the case continued in the lower courts.
“The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner,” Chief Justice Roberts wrote.
The law at issue prohibits abortions after a fetal heartbeat is detected, usually around six weeks of gestation. Abortion providers challenged the law on an emergency appeal at the Supreme Court this week, arguing that most women do not even know they are pregnant at that time.
The legislation is unique in that it allows private citizens — not government officials — to sue abortion providers for violating the ban.
The Center for Reproductive Rights, the American Civil Liberties Union and allied groups launched a lawsuit this year to block the legislation, saying it would force abortion providers to spend massive amounts of money defending themselves in court and would subject them to harassment.
After lower courts refused to issue an injunction, they sought review from the high court, but the justices’ move on Wednesday allowed the law to take effect. Abortion providers in the state said they started turning people away at midnight on Sept. 1 to comply with the law.
They argue that the restriction runs afoul of Supreme Court precedent protecting a woman’s right to an abortion and would ban roughly 85% of abortions in the state, causing clinics to close.
They’re suing a number of defendants including state judges, clerks and Texas Attorney General Ken Paxton.
Texas Gov. Greg Abbott signed the legislation in May. Anyone who successfully sues someone who assists in an abortion after six weeks would receive $10,000.
The Texas defendants filed court papers Tuesday with the high court, arguing that the abortion providers lack standing to bring the lawsuit because they can’t show the defendants have caused them harm sufficient to get into court.
Since the Supreme Court decided in 1973 that women had a right to abortion in the case of Roe v. Wade, pro-life advocates and conservative states have aimed to chip away at that ruling.
More than half a dozen states have tried to ban abortion after six weeks in the past, but none of those laws have gone into effect, according to the Guttmacher Institute, a pro-choice research group.
Texas has attempted to pass strict abortion restrictions in the past.
In 2016, the high court struck down some of the state’s requirements on abortion providers but more than half of the state’s abortion clinics had to close before the justices stepped in, The Associated Press reported.
The Supreme Court has agreed to decide if Mississippi’s ban on abortion after 15 weeks runs afoul of its 1973 ruling in Roe v. Wade during its next term, which begins in October.