Supreme Court Allows Texas’s “Radical” Six Week Ban to Stand, Leaving Abortion Advocates Stunned

This should send chills down the spine of everyone in this country who cares about the Constitution.”

—Nancy Northup, president and CEO of the Center for Reproductive Rights

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An abortion rights rally on the steps of the Texas Capitol on Wednesday, Sept. 1, the day the six-week abortion ban went into effect in the state. “Abortion is essential. Abortion is health care,” the group chanted. “Bans off our bodies!” (Roxy Szal)

On Wednesday, as feminists and reproductive rights advocates watched in horror, Texas implemented the nation’s most restrictive abortion ban—which bans all abortions after six weeks, a time at which many do not even know they are pregnant.

In the days leading up to ban’s implementation, feminists and reproductive rights advocates hoped the Supreme Court would follow decades of precedent, and declare the ban unconstitutional. In a desperate last-ditch attempt, on Monday a coalition of reproductive rights advocates—made up of the Center for Reproductive Rights, Planned Parenthood, the Lawyering Project and the ACLU—filed an emergency request asking the court to block the ban.

But despite this frantic opposition, late Wednesday night the court declined to intervene to block the law in a 5–4 vote, with Chief Justice John Roberts joining the court’s liberal members.

In her dissent, Justice Sotomayor called the order “stunning,” and noted that it flouts “nearly 50 years of federal precedents.”

“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,” she wrote. “The act is a breathtaking act of defiance—of the Constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.”

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Protesters march to the Texas Capitol on Wednesday. (Roxy Szal)

Reproductive rights advocates and health providers noted the “insurmountable” harm the ban would inflict on abortion seekers, particularly Texans who are people of color, low-income or live in rural areas without close access to health care.

“As Senate Bill 8 nearly closes down abortion care, our ability to provide the best health care for our patients has been turned over to self-appointed vigilantes and whoever holds the power at any moment…We have been here before, and we’ll continue serving our patients however we legally can and fighting for their right to safe, compassionate abortion care.”

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance

“Texans are now facing a radical 6 week ban on abortion care that, like all other abortion restrictions, will impact our im/migrant communities the most…Thanks to SB 8, our undocumented communities will lose what little access they had to safe abortion care, and anyone who helps a Texan obtain care — from physicians to nurses to friends and family who offer childcare or a ride to the clinic — is now subject to being investigated, targeted, and sued for providing support.”

Nancy Cárdenas Peña, Texas state policy and advocacy director of the National Latina Institute for Reproductive Justice

“We are devastated that the Supreme Court has refused to block a law that blatantly violates Roe v. Wade. Right now, people seeking abortion across Texas are panicking—they have no idea where or when they will be able to get an abortion, if ever… This should send chills down the spine of everyone in this country who cares about the constitution. We will keep fighting this ban until abortion access is restored in Texas.” 

Nancy Northup, president and CEO of the Center for Reproductive Rights

Officials and lawmakers across the country, including the president and vice president, joined advocates in critiquing the court’s inaction.

 “We are calling on the Supreme Court to uphold 50 years of precedent and ensure that Texans will not be denied their constitutional right to abortion. The Texas abortion ban now in effect makes each citizen a judge and jury, standing above an individual’s right to choose their own path for their health care, even in cases of rape and incest. As leaders in the fight to preserve healthcare and access to abortion, the Democratic attorneys general will fight to protect reproductive rights for every person in every state.”

Massachusetts AG Maura Healey and Nevada AG Aaron Ford, co-chairs of the Democratic Attorneys General Association

“[SB 8] unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts. … I am directing that Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.”

President Joe Biden

In a rare move for a “shadow docket” case, all dissenting justices authored their own dissents.

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Participants outside the Supreme Court at the 4th Annual Women’s March in October 2020. (Ash Sweet @_AshSweet / Twitter)

Fellow liberal Justices Kagan and Breyer along with Chief Justice Roberts joined Justice Sotomayor in sounding the alarm about the decision’s unprecedented nature.

“I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.”

Justice Stephen Breyer

“Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.”

Justice Elena Kagan

“The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.

[A]lthough the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented.”

Chief Justice John Roberts

And feminists reminded us that in this moment, it is more crucial than ever to support those working on the ground to ensure abortion access for all.

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About

Oliver Haug is a social media editor and podcast producer with Ms. magazine. They are also a freelance journalist, focusing on LGBTQ+ issues and sexual politics. Their writing has previously appeared in Bitch Magazine, them.us, the New York Times' newsletter "The Edit," and elsewhere. You can read more of their work at oliverhaug.contently.com, and follow them on Twitter @cohaug.