Supreme Court Will Hear Texas Abortion Ban Cases

SCOTUS did not grant a request to immediately block the ban, but will hear two cases against the ban on November 1

October 22, 2021 1:30 pm

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WASHINGTON 鈥 The U.S. Supreme Court moments ago it will hear two cases challenging Texas鈥 ban on abortion after six weeks of pregnancy (SB 8). The court declined to rule on a request to block the ban until it hears the cases on Nov. 1. Since Sept. 1, when the ban took effect and the Supreme Court initially declined to block the law, nearly all Texans have been unable to access abortion in the state.

The two cases the court will weigh in on include:

  • United States v. Texas: a lawsuit challenging SB 8 filed by the U.S. Department of Justice. Earlier this month, a federal district court granted the DOJ鈥檚 request to temporarily block the law, but an appellate court let the law take effect again less than 48 hours later. The Supreme Court will decide whether to block the law again and whether the DOJ has the authority to bring this case.
  • Whole Woman鈥檚 Health v. Jackson: a case filed against SB 8 by a broad coalition of plaintiffs, including Texas abortion providers, abortion funds, and doctors. In this case, the Supreme Court will decide whether federal courts have the power to block Texas鈥 abortion ban. The ban was specifically designed to evade court review. In August, plaintiffs asked the Supreme Court to block the ban before it took effect on Sept. 1, but the court refused, citing 鈥渃omplex and novel鈥 procedural questions about whether it has the authority to do so. Today鈥檚 order means that the Supreme Court has agreed to鈥痟ear arguments on those鈥痯rocedural鈥痲uestions.

In a to today鈥檚 order, Justice Sonia Sotomayor commented on the court鈥檚 decision to not block the law immediately, writing: 鈥淚 cannot capture the totality of this harm in these pages. But as these excerpts illustrate, the State (empowered by this Court鈥檚 inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State鈥檚 gambit has worked. The impact is catastrophic.鈥

In being heard this term, the state of Mississippi is asking the court to overturn Roe v. Wade and uphold the state鈥檚 ban on abortion after 15 weeks of pregnancy. The court will also determine this term whether Kentucky Attorney General Daniel Cameron will be able to attempt to revive an abortion ban that two courts have held is unconstitutional.

Clinics in neighboring states have reported huge upticks in patients traveling from Texas. For instance, an Oklahoma clinic that two-thirds of the phone calls they鈥檝e received since SB 8 took effect are from Texas patients. U.S. Attorney General Merrick Garland called the ban a 鈥渟cheme to nullify the Constitution.鈥

SB 8鈥痓ans鈥痑bortion鈥痑fter鈥痵ix weeks鈥痠nto a鈥痯regnancy 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 a health center worker, an abortion provider, 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.鈥

The plaintiffs in Whole Woman鈥檚 Health v. Jackson are represented by鈥痶he鈥, Planned Parenthood Federation of America,鈥痶he鈥, the鈥习拿趴苯峁, the鈥,鈥痑nd鈥疢orrison & Foerster LLP. The defendants鈥痠nclude鈥痑 class of state 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 Texas attorney general,鈥痑nd鈥痶he director of Right to Life East Texas, who has鈥痑lready鈥痮penly called for people to sue their local abortion providers under鈥疭B 8.鈥赌

Timeline of Whole Woman鈥檚 Health v. Jackson:

  • May 19: Texas Gov. Greg Abbott鈥疭enate Bill 8 into law.鈥
  • July 13: Plaintiffs鈥痶he case in federal district court.鈥
  • August 4-5:鈥疶he defendants filed four motions to dismiss,鈥痑sking the district court to end the case.鈥
  • August 12: The federal district court judge scheduled a preliminary injunction hearing鈥痜or Aug. 30鈥痶o determine whether to block the law before it would take effect on Sept. 1.鈥赌
  • August 25: The federal district court judge鈥痶he鈥痙efendants'鈥痬otions鈥痶o dismiss the case.鈥疍efendants鈥痠mmediately filed a notice of appeal with the Fifth Circuit, as well as a motion to鈥痵top all proceedings鈥痠n the district court,鈥痠ncluding鈥痗anceling鈥痶he鈥痙istrict court鈥檚鈥痯reliminary injunction hearing.鈥赌
  • August 27: The Fifth Circuit Court of Appeals issued鈥痵topping all proceedings鈥痠n the district court,鈥痠ncluding鈥痗anceling鈥痶he鈥痙istrict court鈥檚 preliminary injunction hearing. The court also denied鈥痶he鈥痯laintiffs鈥欌痳equest to expedite the appeal of defendants鈥欌痬otions to dismiss.鈥赌
  • August 29: The plaintiffs filed鈥痜or emergency relief with the Fifth Circuit, which was quickly鈥.鈥赌
  • August 30: The plaintiffs filed鈥痺ith the U.S. Supreme Court, asking it to block the law before it could take effect on Sept. 1鈥痮r鈥痑llow district court proceedings to resume.鈥
  • September 1:鈥疭B 8 took effect after the Supreme Court did not respond to鈥痯laintiffs鈥欌痳equest before鈥痶he law鈥檚 effective date. Late that same day, the Supreme Court鈥痶he plaintiffs鈥 emergency request鈥痶o block the law鈥痑nd allowed Texas鈥檚 six-week abortion ban to鈥痳emain in鈥痚ffect.鈥疶he鈥痗ase鈥痳eturned to the Fifth Circuit for briefing on defendants鈥 appeal of the district court鈥檚 denial of their motions to dismiss.
  • September 10: The Fifth Circuit issued an order explaining its refusal to block the law, and expedited the defendants' appeals to "the next available oral argument panel."
  • September 22: The Fifth Circuit issued a briefing schedule that will not allow the case to be heard until at least December.
  • September 23: Plaintiffs a petition for writ of certiorari before judgment with the U.S. Supreme Court asking it to hear defendants鈥 appeal on an expedited basis and bypass further proceedings in the Fifth Circuit.
  • October 6: In a separate case filed by the DOJ, a federal district court judge temporarily blocked the law. The state appealed this to the Fifth Circuit.
  • October 8: The Fifth Circuit stayed the district court鈥檚 injunction in the DOJ case, allowing the law to take effect once more. The DOJ asked the Supreme Court to lift the Fifth Circuit鈥檚 stay on Oct. 18 and to also hear defendants鈥 appeal on an expedited basis, bypassing further proceedings in the Fifth Circuit.
  • October 22 (Today): The Supreme Court agreed to hear the DOJ鈥檚 case and Whole Woman鈥檚 Health v. Jackson on Nov. 1 but did not grant the DOJ鈥檚 request to immediately block the law.

Quotes from plaintiffs and litigators:

Brigitte Amiri, deputy director of the 老澳门开奖结果 Reproductive Freedom Project:
鈥淏y refusing once again to block Texas鈥 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鈥檚 most extreme abortion ban for nearly two months. We hope that after the court hears the case on Nov. 1, that it will act immediately to correct its earlier mistake, and will issue a decision that restores abortion access in Texas. This cruel law has had devastating consequences, with the impact hitting marginalized communities the hardest. This is a dire moment, and we鈥檒l do everything in our power to fight back against attacks on our reproductive rights before it鈥檚 too late.鈥

Amy Hagstrom Miller, president and CEO of Whole Woman鈥檚 Health鈥痑nd Whole Woman鈥檚 Health Alliance:
鈥淭exans deserved better than this. The legal鈥痩imbo is鈥痚xcruciating鈥痜or both patients and鈥痮ur鈥痗linic staff.鈥疞ack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come. We鈥檝e had to turn hundreds of patients away since this ban took effect, and鈥痶his ruling means we鈥檒l have to keep denying patients the abortion care that they need and deserve. The Supreme Court has said that abortion is protected by our Constitution, yet they are allowing Texans to be deprived of their rights. To all the Texans who are with us, who have been speaking up, and to those who may need abortion care, let us be clear: just as we have been in the past, Whole Woman鈥檚 Health is here for you, and we are here for the long haul.鈥

Nancy Northup, president and CEO of the Center for Reproductive Rights:
鈥淭he Supreme Court鈥檚 action today brings us one step closer to the restoration of Texans鈥 constitutional rights and an end to the havoc and heartache of this ban. 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. However, we are confident that when the Court ultimately rules in these cases, it will reject the state of Texas鈥 cynical ploy to enact a brazenly unconstitutional abortion ban.鈥濃

Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America:
鈥淪.B. 8 is a heinous and blatantly unconstitutional abortion ban that never should have been allowed to take effect鈥攁nd it鈥檚 devastating that it remains in place. For nearly two months, we've seen the catastrophic impact of S.B. 8 in Texas and beyond. Patients who have the means have fled the state, traveling hundreds of miles to access basic care, and those without means have been forced to carry pregnancies against their will. Every day S.B. 8 is in place is one more day of cruelty, and it cannot stand. We look forward to our patients and providers finally having their day in court on November 1, when the Supreme Court will hear the cases. And we are hopeful the Court will step in and block S.B. 8 from continuing to wreak havoc.鈥


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