Fate of Texas Abortion Ban is with the Supreme Court

Today, the Center for Reproductive Rights, Planned Parenthood, the Lawyering Project, the ACLU, the ACLU of Texas, and Morrison & Foerster LLP filed an emergency request with the U.S. Supreme Court asking it to block Texas’ radical six-week abortion ban (SB 8) before the law takes effect on September 1. Today’s filing comes after the Fifth Circuit Court of Appeals denied the plaintiff’s request on Sunday to block the law. If the Supreme Court does not intervene, abortion services after six weeks into a pregnancy will come to an abrupt stop across Texas on Wednesday. Approximately 85% to 90% of people who obtain abortion in Texas are at least six weeks into pregnancy, meaning this law would prohibit nearly all abortions in the state.

Today’s filing at the Supreme Court comes after the Fifth Circuit paused all proceedings in the district court while also refusing to take any action itself to prevent this unconstitutional ban from taking effect. The plaintiffs today asked the Supreme Court to block the law, or alternatively, allow district court proceedings to continue.

SB 8 bans abortion after six weeks into a pregnancy – before most people even know they’re pregnant – and creates a bounty hunting scheme that encourages the general public to bring costly and harassing lawsuits against anyone who they believe has violated the ban. Anyone who successfully sues a health center worker, an abortion provider, or any person who helps someone access an abortion after six weeks will be rewarded with at least $10,000, to be paid by the person sued. Lawsuits may be filed against a broad range of people, including: 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 assists an abortion patient.

Anti-abortion groups in Texas have already set up online forms enlisting people to sue anyone they believe is violating the law and encouraging people to submit “anonymous tips” on doctors, clinics, and others who violate the law. One defendant testified that there are “countless” abortion opponents standing at the ready to bring these suits. If this law is allowed to take effect, the average one-way driving distance for pregnant Texans seeking an abortion would increase 20-fold, from 12 miles to 248 miles, according to new research from the Guttmacher Institute. The law would present an insurmountable barrier for many patients, with particularly severe impact on the communities that already bear the brunt of Texas’s pre-existing web of medically unnecessary abortion restrictions: people of color, people with low incomes, and young people.

Twelve other states have passed bans on abortion at early stages of pregnancy, but none have been allowed to take effect. Texas’s ban is different than those laws because it allows the public to enforce the ban rather than the traditional state officials – like prosecutors and health departments – enforcing it directly. Anti-abortion politicians designed the law this way to try to insulate it from federal court review.

The plaintiffs include Whole Woman’s Health and other Texas abortion providers, Texas abortion funds and support networks, doctors, health center staff, and clergy members. Plaintiffs are represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, the Lawyering Project, the American Civil Liberties Union, the ACLU of Texas, and Morrison & Foerster LLP. The defendants include every state court trial judge and county clerk in Texas, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the attorney general, and the Director of Right to Life East Texas, who has already openly called for people to sue their local abortion providers under SB 8. 

“Texans, like everyone else in this country, should be able to count on safe abortion care in their own state,” shared Amy Hagstrom Miller, President and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance. “No one should be forced to drive hundreds of miles or be made to continue a pregnancy against their will, yet that’s what will happen unless the Supreme Court steps in. Whole Woman’s Health clinics will provide the full scope of abortion care services up until the minute this law takes effect. We urge the Supreme Court to protect patients’ health and allow us to continue providing the essential healthcare Texans deserve.”

Timeline of the case:

  • May 19: TX Gov. Greg Abbott signed Senate Bill 8 into law.
  • July 13: Plaintiffs filed the case in federal district court. 
  • August 4-5: The defendants filed four motions to dismiss, asking the district court to end the case.
  • August 12: The federal district court judge scheduled a preliminary injunction hearing for August 30 to determine whether to block the law before it takes effect on September 1.
  • August 25: The federal district court judge denied the defendant’s motions to dismiss the case. Defendants immediately filed a notice of appeal with the Fifth Circuit, as well as a motion to stop all proceedings in the district court, including canceling the district court’s preliminary injunction hearing.
  • August 27: The Fifth Circuit Court of Appeals issued an order stopping all proceedings in the district court, including canceling the district court’s preliminary injunction hearing. The court also denied the plaintiffs’ request to expedite the appeal of the state’s motion to dismiss. Without expediting the appeal process, the law could be in effect for months before the Fifth Circuit issues a decision.
  • August 29: The plaintiffs filed for emergency relief with the Fifth Circuit, which was quickly denied.
  • August 30 (Today): The plaintiffs filed an emergency request with the U.S. Supreme Court, asking it to block the law before it can take effect on Wednesday and allow district court proceedings to resume.

You can read the full complaint here