Supreme Court Refuses to Block Texas Abortion Ban, Agrees to Hear Two Cases Challenging the Law

“We are enormously disappointed that the Court has left the law in effect for now, forcing those with means to leave the state to access constitutionally protected abortion services and leaving others with no options at all.”

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

supreme-court-texas-abortion-ban
After the decision on Whole Woman’s Health v. Hellerstedt Texas abortion case outside the Supreme Court, Washington, D.C., in June 2016. (Adam Fagen / Flickr)

On Friday, the U.S. Supreme Court agreed to hear a U.S. Justice Department challenge to a Texas law banning abortion after six weeks, but refused to block the law while it considers the case, leaving Texans without access to safe, legal abortion health care. The Court also agreed to hear an appeal in another case brought by abortion providers. The Court set oral arguments in both cases on November 1.

Justice Sotomayor wrote a searing dissent to the Court’s refusal to enjoin the law:

“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. For the second time, the Court declines to act immediately to protect these women from grave and irreparable harm…. 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. Because every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent from the Court’s refusal to stay administratively the Fifth Circuit’s order.”

Last month, in a stunning 5-4 decision, the Supreme Court allowed the blatantly unconstitutional Texas abortion ban to go into effect while courts consider a legal challenge on behalf of abortion providers by the Center for Reproductive Rights. The Department of Justice then filed its lawsuit challenging the Texas abortion ban.

Earlier this month, U.S. District Judge Robert Pitman in Austin issued a 113-page decision in the Justice Department’s lawsuit ruling that the Texas law—S.B. 8—is an unconstitutional violation of the right to abortion established by the Supreme Court in Roe v. Wade and Casey v. Planned Parenthood, which do not allow states to ban abortion before viability at 24 weeks of pregnancy.

But 48 hours after Judge Pitman’s decision, the Fifth Circuit Court of Appeals reversed the ruling and ordered the law back into effect. The Justice Department immediately filed an appeal asking the Supreme Court to bypass the appeals court—which has already denied two requests to halt the law—to hear arguments in the case now and issue a final ruling instead of an interim order. The Center for Reproductive Rights made a similar request in their case.

“We are enormously disappointed that the Court has left the law in effect for now, forcing those with means to leave the state to access constitutionally protected abortion services and leaving others with no options at all,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.

“By refusing once again to block Texas’s horrific abortion ban, the Supreme Court is sending an alarming signal that it will stand idly by while our reproductive rights are violated, a reality Texans are too familiar with after living under the nation’s most extreme abortion ban for nearly two months,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project.

When the law went into effect on September 1, most clinics in Texas ceased offering abortion after six weeks.

“The legal limbo is excruciating for both patients and our clinic staff,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance. “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.”


“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.”

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


Planned Parenthood reported an 80 percent drop in the number of patients at its Texas clinics in the two weeks after S.B. 8 took effect. Patients—if they had the resources—began traveling to neighboring states to obtain abortion health care. The Guttmacher Institute estimates the law has increased average distance travelled to obtain abortion 14 times—from 17 miles to 247 miles.

“This cruel law has had devastating consequences, with the impact hitting marginalized communities the hardest,” said Amiri. “This is a dire moment, and we’ll do everything in our power to fight back against attacks on our reproductive rights before it’s too late.” 

SB 8 attempts to make an end run around the Constitution by empowering private citizens—even complete strangers—to sue anyone who helps another person obtain an abortion, rewarding them $10,000 or more plus attorney fees if they win a case to be paid for by the person who is sued. By delegating authority to enforce the law to private individuals, Texas is trying to circumvent the Constitution—since abortion rights are protected by the 14th Amendment, which applies to state action but not private action.

Justice Sotomayor strenuously objected to the Court allowing this tactic to succeed. “Every day that S. B. 8 remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights,” warned Justice Sotomayor.

On November 1, the Supreme Court will hear oral arguments on decide whether the Court has the authority to block the law before it takes effect, whether the United States government has the authority to bring a case against the State of Texas to prevent its state court judges, state court clerks, other state officials, and private parties from enforcing S.B. 8, and whether to reinstate Judge Pitman’s order blocking the law.

“The Supreme Court’s action today brings us one step closer to the restoration of Texans’ constitutional rights and an end to the havoc and heartache of this ban,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “We are enormously disappointed that the Court has left the law in effect for now… However, we are confident that when the Court ultimately rules in these cases, it will reject the state of Texas’ cynical ploy to enact a brazenly unconstitutional abortion ban.”

If you found this article helpful, please consider supporting our independent reporting and truth-telling for as little as $5 per month.

Up next:

About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman Professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.