Supreme Court Lets Texas Abortion Ban Case Drag On

Ban likely to stay in effect for foreseeable future after Supreme Court rejects most promising attempts to block the law and allows remainder of lawsuit to languish in lower court

January 20, 2022 4:30 pm

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WASHINGTON The U.S. Supreme Court a request today from abortion providers and funds to allow one of the challenges against SB 8 (Texas鈥 ban on abortion after approximately six weeks of pregnancy) to finally proceed in district court after months of delay since the law took effect on September 1. Earlier this week, the Fifth Circuit Court of Appeals the case to the Supreme Court of Texas, preventing abortion providers from getting back to the district court and obtaining a declaration that this ban is unconstitutional. On January 3, abortion providers 鈥 led by Whole Woman鈥檚 Health 鈥 asked the Supreme Court to order the Fifth Circuit to return the case to the district court immediately, where they stand a chance of blocking some government officials from enforcing the ban. Today, the Supreme Court denied that request, allowing the state of Texas to slow walk the case and prevent any form of relief against the ban.

In a blistering , Justice Sonya Sotomayor wrote, 鈥淭his case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.鈥

The case, Whole Woman鈥檚 Health v. Jackson, will remain at the Texas Supreme Court for now. The case has been dragged out for weeks already since the Supreme Court dismissed most of the case last month, and sent what was left back to the U.S. Court of Appeals for the Fifth Circuit.

Since September 1 鈥 when SB 8 first took effect鈥痑fter the Supreme Court initially refused to block it 鈥 Texans who are past the earliest stages of pregnancy have been unable to access abortion in the state. The impact has fallen鈥痟ardest on marginalized communities, including people living on low incomes, and Black and Brown communities. People who are unable to leave the state have been forced to continue their pregnancies. Those with resources are forced to flee the state for abortion care. Clinics in neighboring states reported huge upticks in Texas patients, resulting in weeks-long wait times for all patients. For instance, an Oklahoma clinic鈥痶hat two-thirds of the phone calls it received since SB 8 took effect were from Texas patients.鈥

Today鈥檚 order follows the 5-4 majority Supreme Court opinion from December 2021 which largely dismissed Whole Woman鈥檚 Health v. Jackson, ruling that abortion providers could not bring suit against classes of 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 bounty-hunter lawsuits from being filed. In a on the U.S. Department of Justice鈥檚 challenge to the law, the court denied the DOJ鈥檚 request to block the law and sent the case back to the Fifth Circuit Court of Appeals, which already wiped out emergency relief to restore abortion access.

Several state court challenges seeking to declare SB 8 unconstitutional remain ongoing. In a case brought by Planned Parenthood affiliates in Texas and others, a Texas state court judge held SB 8鈥檚 private enforcement scheme unconstitutional. An appeal is pending over whether the affiliates鈥 claims should have been dismissed. In October, the Center for Reproductive Rights , Braid v. Stilley, on behalf of Dr. Alan Braid, a Texas doctor who provided abortion services in violation of the ban.

Since SB 8 took effect, the average one-way driving distance for Texans to reach an abortion clinic has 鈥 a 14-fold increase. In October, the Guttmacher Institute showing how far people in each state will need to travel for abortion care if Roe v. Wade is overturned.

SB 8 鈥痓ans鈥痑bortion鈥痑fter鈥痑bout six weeks鈥痮f pregnancy 鈥 before many people even know they鈥檙e pregnant 鈥 and creates鈥痑 bounty-hunting scheme that鈥痚ncourages the鈥痝eneral鈥痯ublic鈥痶o鈥痓ring costly and harassing lawsuits against鈥痑nyone鈥痺ho鈥痶hey believe has鈥痸iolated鈥痶he ban.鈥疉nyone who successfully sues an abortion provider, a health center worker, or any person who helps someone access an abortion after six weeks in Texas will be rewarded with at least $10,000,鈥痶o be鈥痯aid by the person sued.鈥疞awsuits鈥痬ay鈥痓e filed against a broad range of people, including: a physician who provides an abortion; a person who drives their friend to obtain an abortion; abortion funds providing financial assistance to patients; health center staff; and even a member of the clergy who鈥痑ssists鈥痑n abortion patient.

The plaintiffs in鈥Whole Woman鈥檚 Health v. Jackson鈥痑re represented by鈥痶he鈥, ,鈥痶丑别鈥, the鈥老澳门开奖结果, the鈥,鈥疢orrison & Foerster LLP, and Austin attorney Christen Mason Hebert. The defendants鈥痠ncluded鈥 classes of鈥痵tate court trial鈥痡udges鈥痑nd鈥痗ounty鈥痗lerks鈥痠n鈥疶exas,鈥痶he Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the鈥疶exas鈥痑ttorney general,鈥痑nd鈥痶he鈥痙irector of Right to Life East Texas.

Whole Woman鈥檚 Health v. Jackson is a part of the 老澳门开奖结果鈥檚 Joan and Irwin Jacobs Supreme Court Docket, which can be found here: /defending-our-rights/court-battles/supreme-court

Quotes from plaintiffs and litigators:

Statement from Brigitte Amiri, deputy director of the 老澳门开奖结果 Reproductive Freedom Project:
鈥淭he majority of the Supreme Court turned its back yet again on the suffering of Texans. For months, countless Texans have been forced to carry pregnancies against their will, depriving them of the ability to make decisions about their body and future. Unfortunately, it won鈥檛 stop there. Politicians are feeling emboldened to pass similarly cruel policies aimed at banning abortion entirely in other states through this bounty-hunter scheme, and they will ultimately push for a nationwide abortion ban. We won鈥檛 stop fighting until we put an end to these laws that ban abortion and force people to be pregnant with the impact hitting the most marginalized communities the harshest.鈥

Statement from Amy Hagstrom Miller, President and CEO of Whole Woman鈥檚 Health and Whole Woman鈥檚 Health Alliance:
鈥淢ake no mistake: Texans are still suffering every single day under this law. It breaks my heart every time our clinic staff are forced to deny pregnant people care and turn them away. This law is cruel and unconstitutional, and I am deeply disappointed that our judicial system has done very little to stop it.鈥

Statement from Nancy Northup, president and CEO of the Center for Reproductive Rights:
鈥淭exans have been without abortion access for almost five months now, and there is no end in sight because the Supreme Court has done nothing to stop this unconstitutional ban. It is allowing the state of Texas to deprive people of a constitutional right. Seven other states have already introduced copycat bans now that the Court has let Texas get away with this ploy. It鈥檚 time for the Senate to take action and pass the Women鈥檚 Health Protection Act, which has already passed the House and has the Biden Administration鈥檚 support.鈥

Statement from Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America:
鈥淥nce again the Supreme Court has betrayed the people of Texas, who have been callously stripped of their constitutional right to abortion for more than four months now. By enabling the state鈥檚 obvious ploy to delay any resolution to this case, this Court is complicit in the widespread harm to Texans who remain unable to make meaningful decisions about their own bodies. With no end in sight, people in Texas will continue to be forced to flee the state for essential health care 鈥 if they can 鈥 or to carry pregnancies against their will. That is inhumane. Planned Parenthood will continue to fight for our patients, and for all people in Texas, who deserve the dignity of being able to control their own lives and futures.鈥

Statement from Rupali Sharma, Senior Counsel and Director at the Lawyering Project:
鈥淭oday鈥檚 ruling means Texans will continue to be denied their fundamental rights. Texans who need an abortion and can cobble together the resources may be able to leave the state for care, but many will be forced to remain pregnant against their will. That鈥檚 unconscionable. We will continue to stand with our partners in Texas, including the abortion funds and practical support groups who are working day and night to end this human rights crisis.鈥


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