Supreme Court Refuses to Block Texas Abortion Ban—Leaving Only Slow, Arduous and Uncertain Pathways to Ending the Ban

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Abortion rights protesters demonstrate outside the Texas State Capitol in Austin on Sept. 1, the day S.B. 8 took effect in Texas. (Roxy Szal)

On Friday, the U.S. Supreme Court refused to block a clearly-unconstitutional abortion ban in Texas, leaving in place S.B. 8, which bans most abortions after six weeks of pregnancy—before many women even know they are pregnant. The Court’s ruling substantially narrows options to challenge the law in federal court, and there is no fast option for a Texas Supreme Court ruling in state court, say legal experts.

“It’s stunning that the Supreme Court has essentially said that federal courts cannot stop this bounty-hunter scheme enacted to blatantly deny Texans their constitutional right to abortion,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which represents abortion providers in one of the cases before the Court. “The Court has abandoned its duty to ensure that states do not defy its decisions. For 100 days now, this six-week ban has been in effect, and today’s ruling means there is no end in sight. Pregnant people will continue to live in a state of panic and uncertainty.”

The Supreme Court has twice before refused to block the law on September 1 and October 22.

The case out of Texas, Whole Woman’s Health v. Jackson, was brought by abortion providers. Eight of the nine justices—excluding Justice Clarence Thomas—agreed that abortion providers could sue, but the justices were split when it came to deciding against whom specific lawsuits could be levied. A 5-4 majority of the Court dismissed the most significant part of the case, ruling that they could not bring suit against state judges and clerks or the state attorney general. The Court also ruled that a narrow portion of the case may proceed against the Texas Medical Board and other licensing authorities, but this would not prevent people from filing bounty-hunter lawsuits against anyone who helps someone obtain an abortion. 

In a separate unsigned ruling in United States v. Texas, the Court denied the U.S. Department of Justice’s request to block the law and sent the case back to the Fifth Circuit Court of Appeals, which has already denied emergency relief to restore abortion access. 

At issue in the cases was whether federal courts could rule on the constitutionality of the law before enforcement, or if abortion providers would have to violate the law and then defend themselves by arguing that the law was unconstitutional, which would subject providers to burdensome and expensive litigation and take a long time.

“There are no simple fixes at this point. The Supreme Court’s decision today is a devastating ruling in terms of foreclosing the possibility of short-term relief that would actually fully restore abortion access,” said Julia Kaye, staff attorney at the ACLU Reproductive Freedom Project. “There is no doubt that, because of this ruling, thousands more people will be forced to flee their home states in pursuit of vital medical care, and countless others will be forced to continue pregnancies against their will—especially communities of color and those with fewer resources.”

There is no doubt that, because of this ruling, thousands more people will be forced to flee their home states in pursuit of vital medical care, and countless others will be forced to continue pregnancies against their will—especially communities of color and those with fewer resources.

President and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance Amy Hagstrom Miller agreed the impact on people seeking abortion health care on Texas will continue to be devastating.

 “This ban will have lasting effects on Texan communities for decades to come,” said Hagstrom Miller. “We’ve had to turn hundreds of patients away since this ban took effect, and there is no end in sight. For nearly 50 years, the Supreme Court has said that abortion is protected by our Constitution, yet they are allowing Texans to be denied that right. This is not okay.” 

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An abortion rights march in Austin, Texas, in July 2013. (mirsasha / Flickr)

Since S.B. 8 took effect on September 1, the average one-way driving distance for Texans to reach an abortion clinic has increased from 17 miles to 247 miles—a 14-fold increase. Clinics in neighboring states have reported overwhelming numbers of patients coming from Texas. Hope Medical Group for Women in Louisiana is fully booked through mid-January 2022 due to the influx of Texas patients and Mississippi’s Jackson Women’s Health Organization has had to increase the number of days they provide abortions from three to six days per week to accommodate patients coming from Texas.

“A dark cloud hangs over the U.S. Constitution and the state of Texas today as the Supreme Court once again allowed extremist lawmakers to continue imposing their ideologies onto Texans’ private health care decisions,” said Adriana Piñon, policy counsel and senior staff attorney at the ACLU of Texas. ”We are particularly devastated by the implications of this ruling for Black Texans, who account for a shocking 31 percent of maternal deaths, and the broader fight for reproductive justice in our Black and Brown communities.” 

S.B. 8 allows any private individual to sue healthcare providers who perform a prohibited abortion or someone who “aids and abets” another person to obtain one. The law rewards successful plaintiffs “at least $10,000” plus attorney fees and bars defendants who win cases from getting legal fees. By barring state officials from enforcing the law and deputizing private individuals to act as bounty hunters for the state, lawmakers are hoping to get around the U.S. Constitution’s 14th Amendment, which extends protections guaranteed by the federal constitution to state and local governments but does not apply to private citizens.

“This is a disheartening ruling, not only for Texans and abortion rights, but for those who value the rule of law,” said Rupali Sharma, senior counsel and project director at the Lawyering Project. “Our legal system forbids politicians from skirting judicial review of laws attacking fundamental rights. Texans seeking abortion care are entitled to the same liberty, equality and dignity as every other resident of this country, and we will continue to stand with our partners until this cruel law is invalidated.”   

Kaye expressed concerns that other states would enact similar laws now that the Supreme Court has refused to intervene. 

“The Supreme Court has again turned its back on the Constitution and permitted Texas’s bounty-hunter scheme to continue, leaving only a thin legal path forward for Texas abortion providers desperate to care for their patients,” said Kaye. “The impact of this betrayal will stretch far beyond Texas, where lawmakers are already introducing copycat bounty-hunter bills designed to eliminate all abortions within their borders. But make no mistake: Today it’s abortion rights that have been targeted; tomorrow it could be any other freedom people hold dear.”  

Make no mistake: Today it’s abortion rights that have been targeted; tomorrow it could be any other freedom people hold dear.

Northup agreed. “This bounty-hunting scheme could be used by other states not only to deny abortion access, but also to deny any court rulings they disagree with from marriage equality to voting rights and more.”

Justice Sotomayor wrote a searing dissent to the Court’s refusal to block the law: “The Court should have put an end to this madness months ago, before S.B. 8 first went into effect. It failed to do so then, and it fails again today. I dissent from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review.”

Sotomayor also raised the alarm about how anti-abortion politicians might get around the decision: “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

State Judge Declares S.B. 8 Unconstitutional

Despite the Supreme Court’s refusal to block the law, a Texas judge in Austin on Thursday ruled that S.B. 8’s grant of enforcement power to “any person” is an unlawful delegation of enforcement power to a private person in violation of the Texas Constitution and the U.S. Constitution’s 14th Amendment. In the lawsuit brought by clinics against Texas Right to Life, the judge said the law should not be enforced in court—but Texas Right to Life appealed the case and the judge declined to enter an injunction against the law. Whole Woman’s Health said their four clinics will not resume abortion services after six weeks until an injunction is entered. The case is also currently being appealed.

Women’s Health Protection Act

Meanwhile, in Congress, U.S. Senator Patty Murray (D-Wash.) joined other lawmakers in pressuring the Senate to pass the Women’s Health Protection Act (WHPA), which would create a federal right to abortion.

“A person’s ability to get constitutionally protected health care should not be turned off and on like a faucet,” said Murray. “This is about people’s lives and their ability to make their own decisions about pregnancy and parenting. Texans cannot continue waiting, and neither can patients across the country. We need federal protections. We need the Women’s Health Protection Act.”

The House passed WHPA in June, but Republicans have filibustered a vote on the act since then.

“We will continue to seek justice in the shred of the case that the Court has allowed to go forward and seek every other legal means to stop this catastrophic law,” said Northup. “The Senate needs to pass the Women’s Health Protection Act immediately to restore the constitutional right to abortion in Texas and stop it before it spreads to other states.” 

Take Action

Advocates also call on abortion rights supporters to donate to abortion funds in Texas, which are in critical need for resources to help people travel to obtain abortions in surrounding states.

“For more than 100 days, Texas abortion funds have received an unprecedented number of requests for assistance, and with this ban remaining in effect as the legal challenge moves forward, they will continue to be inundated,” said Asha Dane’el, board co-chair of the National Network of Abortion Funds and former Texas abortion fund board member.

“People working to make ends meet have been navigating the difficult terrain of abortion restrictions and bans for decades, and these last several months the barriers they faced have grown enormously,” Dane’el continued. “The fight continues, and whatever happens next, abortion funds will keep doing what they do best—showing up for people who need abortions, showing up for their communities, and showing up for each other.”

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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 [email protected] or follow her on Twitter @CarrieNBaker.