Supreme Court allows Texas’ six-week abortion ban to remain for now

by | Dec 10, 2021 | News, Reproductive Rights

Texas’ six-week abortion ban will remain in effect after the U.S. Supreme Court allowed abortion providers to sue the state in federal court, but refused to provide relief against the law while the litigiation makes its way through court.

The Supreme Court’s ruling sends the case back to the lower courts, where the same federal judge who blocked the abortion ban before will most likely be asked to rule on it again. The decision will then be reviewed by the 5th U.S. Circuit Court of Appeals, which has allowed enforcement of the law to go forward twice. Ultimately, the case could end up going back to the Supreme Court. 

The decision means abortion providers will continue to wait for their day in court as Senate Bill 8 effectively ends most abortions in the state and forces patients to seek help outside Texas.

In a press conference with abortion providers and the American Civil Liberties Union, Mark Hearron, senior counsel for the Center for Reproductive Rights said it was a dark day for abortion patients, physicians, providers, and those who believe in constitutional rights. 

Instead of directing state officials to enforce the ban, Texas has authorized private citizens to sue anyone who facilitates an abortion in violation of the law, and offers a $10,000 bounty for successful lawsuits. (On Thursday a state judge ruled that this enforcement mechanism violates the Texas Constitution.)

“Make no mistake, an injunction against those officials will not block Texas’ bounty-hunting scheme,” Hearron said, warning that the court’s inaction will lead to copy cat abortion laws in other states.

Dr. Bhavik Kumar, a Houston physician with Planned Parenthood said that the last 100 days SB 8 has been in effect have been the most challenging of his career.

“We must look them in the eye and tell them no when they are begging us for help,” Kumar said of turning away patients everyday.

Amy Hagstrom Miller President of Whole Woman’s Health, an abortion provider and lead plantiff in the case, said the ban has had an excruciating impact on staff  and patient.

“They deserve better than that,” Hagstrom said. “They deserve better than constant attacks on their reproductive anatomy.” 

Whole Woman’s Health has four clinics in Texas. Hagstrom said nearly 70 percent of the patients they see for abortions are already parenting and cannot afford time off or the expenses of traveling to another state to receive an abortion. 

Even if patients are able to leave Texas, surrounding out-of-state abortion providers are overwhelmed. Hagstrom said clinics in Oklahoma and Louisiana were facing patient wait times of four and six weeks, respectively. 

In a statement, Aimee Arrambide, director of abortion advocacy group Avow Texas said Friday’s decision sends a dangerous message that the court is likely to overturn almost 50 years of established precedent in Roe v. Wade. 

“The Court has failed the majority of Americans and Texans who believe in the right to abortion care and the one in four women who will need abortion care in their lifetime by putting political ideology and extremism ahead of their duty to protect the constitution’s promise of liberty for all,” Arrambide said.

In a dissenting opinion, Justice Sonia Sotomayor said 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,” Sotomayor said. “I concur in the Court’s judgment that the petitioners’ suit may proceed against certain executive licensing officials who retain enforcement authority under Texas law, and I trust the District Court will act expeditiously to enter much-needed relief. I dissent, however, 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.”

“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,” Sotomayor said. “The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

The decision has reginited the desire for Democratic congressional lawmakers seeking to codify abortion protections in U.S. law.  On Twitter,  El Paso Congresswoman Rep. Veronica Escobar said Congress must protect reproductive rights if SCOTUS won’t and urged members to pass the Women’s Health Protection Act, legislation that would protect the right to abortion access around the country.

“Today’s halfway decision is a reminder that the far-right majority of the court is not on the side of the people nor on the right side of history,” said Texas Democratic Party Co-Executive Director Jamarr Brown in a prepared statement. “Congress must take immediate action and pass the Women’s Health Protection Act.”

Photo: AFP / MANDEL NGAN via Getty Images

fernando@texassignal.com | + posts

Fernando covers Texas politics and government at the Texas Signal. Before joining the Signal, Fernando spent two years at the Houston Chronicle and previously interned at Houston’s NPR station News 88.7. He is a graduate of the University of Houston, Jack J. Valenti School of Communication, and enjoys reading, highlighting things, and arguing on social media. You can follow him on Twitter at @fernramirez93 or email at fernando@texassignal.com

Washington Correspondent | + posts

William serves as the Washington Correspondent for the Texas Signal, where he primarily writes about Congress and other federal issues that affect Texas. A graduate of Colorado College, William has worked on Democratic campaigns in Texas, Colorado, and North Carolina. He is an internet meme expert.

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