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LGBTQ+ Groups: SCOTUS Should Have Blocked Texas Abortion Law

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The court did allow a suit against the restrictive law to proceed, but it leaves important rights in peril, activists say. 

Some LGBTQ+ rights activists are denouncing the U.S. Supreme Court's refusal to block the enforcement of a restrictive Texas abortion law, although it will let a lawsuit against the law to proceed.

The Texas law, Senate Bill 8, bans most abortions after six weeks -- before most people know they're pregnant -- but instead of making state officials responsible for enforcement, it empowers private individuals to sue abortion providers and anyone who "aids or abets" the procedure, including medical staffers, counselors, those who help a patient pay for it, and even those who drive the patient to the clinic. The court had declined to block the law in an opinion issued September 1, and it did so again Friday in response to a petition from the U.S. Justice Department, saying lower courts should consider the matter.

But it agreed Friday that a suit against the law can go forward, "ruling that abortion providers in the state may sue some state officials in federal court despite the procedural hurdles imposed by the unusual structure of the law," The New York Times reports. The state had contended that since it isn't enforcing the law, it can't be sued. But the court ruled that certain state officials can be sued, although not others.

"Although the Supreme Court has allowed the challenge to SB 8 to proceed against certain state defendants, the Court once again has failed in its obligation to vindicate constitutional rights against an effort by a state to nullify them, with deeply troubling implications," said a statement issued by Sharon McGowan, legal director and chief strategy officer at Lambda Legal. "The enforcement scheme devised by the state of Texas was intended to create an end-run around judicial review, and a majority of the Court was willing to acquiesce in this scheme to violate the Constitution with impunity. As Chief Justice Roberts noted in his opinion dissenting in part, 'The clear purpose and actual effect of S.B. 8 has been to nullify [the Supreme] Court's rulings' regarding abortion."

"As the Chief noted, 'the Constitution is the fundamental and paramount law of the nation.' Yet, through its decision today, a majority of the Court has sent the dangerous message that it will abdicate its responsibility when states brazenly attempt to annul constitutional guarantees by ignoring decisions of the Supreme Court. As the Chief Justice correctly notes, when states are allowed to act as Texas has done here, 'the constitution itself becomes a solemn mockery.' Today's decision will certainly embolden other states to continue to test whether our current Supreme Court can be trusted to play its essential role as a defender of constitutional liberties and of the rule of law. This decision also will embolden those who wish to place bounties on the heads of other people who are simply exercising constitutionally guaranteed rights. The Court's ruling causes us grave concern about the fate not only of abortion rights, but of other protected liberties, including those relied upon by the LGBTQ community to protect ourselves and our families, which remain under relentless attack.

"We support Whole Woman's Health, other abortion providers, abortion funds, support networks, and clergy members in Texas who have been and want to continue providing this critical health care for so many, as well as their advocates, Center for Reproductive Rights, Planned Parenthood Federation of America, the Lawyering Project, the ACLU, and ACLU of Texas. We are outraged that SB 8 continues to block access to life-saving health care, of which abortion is an essential component, full stop. People have been suffering and will continue to suffer grave harm since this law went into effect, and lives will be lost as a result of this unconstitutional infringement on abortion access. And the price will be exacted most heavily, as it always is, on the most vulnerable in our community -- women, LGBTQ+ people, people of color, people who experience domestic violence, disabled people, immigrants, people working to make ends meet, and especially those living with multiple marginalized identities. No one should lose sight of these grave realities."

McGowan and others have pointed out that the right to abortion is not an exclusively heterosexual issue -- LGBTQ+ people can and do become pregnant. And reproductive rights also encompass the right to contraception, to assisted reproductive technologies, and more. Also, those rights derive from the same privacy right in which marriage equality, the right to consensual sexual relationships, and others are rooted.

The Human Rights Campaign also spoke out about Friday's decisions. "Having access to needed medical care, including abortion care, is a right that every person is entitled to and Texas lawmakers have stripped that from pregnant people in their state," said a statement from Sarah Warbelow, HRC's legal director. "The Supreme Court's decision today allowing the law to be challenged is a hopeful step forward -- however, it still leaves abortion access in peril and increasingly vulnerable. The landmark precedent set in [Roe v. Wade] and [Casey v. Planned Parenthood] must be upheld to ensure a continued right to privacy."

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