Updated Nov. 22, 2021, at 8:53 a.m. PT.
The Supreme Court has yet again declined to block Texas’s S.B. 8, the most restrictive abortion ban in history—meaning it will likely be in effect when the Court considers an upcoming challenge to Roe v. Wade.
Legal experts anticipated the U.S. Supreme Court would issue an opinion on Monday, Nov. 22, on Texas Senate Bill 8, the most restrictive abortion ban in the country that defies Court precedent. But, according to the SCOTUS Blog, the Supreme Court is not issuing an opinion Monday on the law.
JUST IN: The court issues its only opinion of the day… and it’s in Mississippi v. Tennessee, a dispute over interstate groundwater. No ruling on the Texas abortion law today.— SCOTUSblog (@SCOTUSblog) November 22, 2021
Here’s the unanimous opinion in Mississippi v. Tennessee: https://t.co/MK7NdHNGNe
With the Thanksgiving holiday approaching, Monday was the last day for the Court to issue a ruling on the Texas law before they hear arguments on Dec. 1 in Dobbs v. Jackson Women’s Health organization, a case scrutinizing a 15-week abortion ban out of Mississippi.
The Supreme Court heard oral arguments in October in two cases challenging the law: United States v. Texas and Whole Woman’s Health v. Jackson. The Court’s lack of action on whether to allow the challenges to proceed is an ominous sign, according to legal experts.
“Though this is in one sense about abortion, it is really about much more,” the dean of Berkeley Law School Erwin Chemerinksy told Ms.’s Carrie Baker. “It’s about: Can the state adopt a law that blatantly violates the Constitution and then immunize itself from federal court review? … Ultimately, it’s about whether states have to follow the Constitution. It’s about the very structure of American government.”
That the justices didn’t issue a ruling in the Texas abortion cases today is not great news. These are not difficult cases to decide if the justices are faithfully applying the law to the facts. And yet. Here we are. Still no opinion.— Jessica Mason Pieklo (@Hegemommy) November 22, 2021
“Pregnant people in Texas have had their access to abortion blocked for 82 days now,” said Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health and ob-gyn in D.C. “This is unacceptable. … Access to abortions means access to creating the futures we want and need. Access to abortions means healthier families and communities.”
In early November, a state district judge heard arguments from abortion providers and advocates to block enforcement of S.B. 8. For the first time, a judge was tasked to formally rule on the merits of the law and the constitutionality of the ban under both the Texas and U.S. Constitutions. Judge David Peeples of the 98th Judicial District Court in Travis County is expected to rule on the decision soon.
The case is a consolidation of 14 lawsuits filed in Texas on behalf of doctors, abortion fund organizations, lawyers and other advocates that challenge the ban. Rather than target the state of Texas itself, the suits target Texas Right to Life, an anti-abortion PAC that helped craft language for S.B. 8 as well as S.B. 1, the infamous voting law that creates higher barriers to ballot access and is especially harmful to Texans of color.
“I am bringing this lawsuit because nobody is above the law,” said Allison Van Stean, an individual plaintiff and attorney in the case, at a Wednesday press conference. “S.B. 8 is vague and overbroad, and it was intentionally calculated to try to prevent successful litigation. … I am a plaintiff in this suit because I am angry that the state of Texas conspired with anti-abortion groups to circumvent the law.”
“Today is the first day since S.B. 8 went into effect that the people of Texas will be heard on this law,” said Anna Rupani, executive director of Fund Texas Choice, another plaintiff.
I am angry that the state of Texas conspired with anti-abortion groups to circumvent the law.
Up until now, S.B. 8 has evaded judicial scrutiny due to a unique provision in the law that delegates enforcement of the law to private citizens—though legal scholars say the law flies in the face of Supreme Court precedent in the 1973 decision Roe v. Wade, which established the constitutional right to abortion, and the 1992 case Planned Parenthood v. Casey which reaffirmed Roe. Despite myriad lawsuits from plaintiffs ranging from the Department of Justice to on-the-ground abortion providers, the law has been in effect since Sept. 1.
And it’s having chilling effects: Since the law has been in effect, 99 percent of the clients abortion funds like Fund Texas Choice and the Lilith Fund serve must travel out of state to obtain their abortion. The average cost of each abortion-seeker’s travel is $900, according to Rupani.
Texans who can afford to travel have obtained abortions in at least 12 states that do not border Texas, including Illinois, Maryland and Washington, according to new research from the Guttmacher Institute. The four states that border Texas—Arkansas, Louisiana, New Mexico and Oklahoma—are also experiencing overcrowding in an attempt to accommodate both local community members and Texans migrating for abortions.
On the ground in Texas, people cannot wait “while judges and politicians play legal ping-pong with procedural issues,” said Rupani. “Every day this ban remains in place is one more day of cruelty to Texans.”
“Our lawsuit is about fighting for Texans who deserve access to the essential health care they need, without having their medical decisions controlled by politicians, anti-abortion vigilantes, or anyone else,” said plaintiff Amanda Beatriz Williams, executive director of Lilith Fund.
It’s unclear what the outcome of Wednesday’s challenge will be, especially in comparison to the anticipated Supreme Court ruling.
Earlier this month, Ms. and the Brennan Center (BC) for Justice, a nonpartisan law and policy institute at the NYU School of Law, co-published 11 essays as part of a groundbreaking series, “Abortion Is Essential to Democracy.” In the series, BC experts argue that voting rights and democracy are connected to abortion access.
The essays all directly comment on the decision for the Supreme Court to hear oral arguments on Dec. 1 in Dobbs v. Jackson—a direct challenge to both Roe v. Wade and Planned Parenthood v. Casey. Read all 11 essays here.