Fate of Texas Abortion Ban is with the Supreme Court

AUSTIN, Texas – Today, the American Civil Liberties Union, ACLU of Texas, Center for Reproductive Rights, Planned Parenthood, the Lawyering Project, and Morrison & Foerster LLP filed an emergency request with the U.S. Supreme Court asking it to block Texas’ radical six-week abortion ban (S.B. 8) before the law takes effect on Sept. 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 percent 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.

S.B. 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 preexisting 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 from 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 S.B. 8. 

Timeline of the case:

• May 19: Texas 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 Sept. 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. 

You can read more about the case here.

Quotes from plaintiffs and litigators: 

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance: 

“Texans, like everyone else in this country, should be able to count on safe abortion care in their own state. 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 be open to provide abortion care up until the minute this law takes effect and we urge the Supreme Court to protect patients’ health and allow us to continue providing the essential healthcare Texans deserve.”

Nancy Northup, president and CEO of the Center for Reproductive Rights: 

“There are less than two days left before Texas politicians will have effectively overturned Roe v. Wade. We have filed an emergency motion in the Supreme Court to block this law before clinics are forced to turn patients away, and patients will have to travel out of state – in the middle of a pandemic – to receive constitutionally guaranteed healthcare. Many will not be able to afford to. It’s cruel, unconscionable, and unlawful.”

Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America:

“We’ve always said that we will do everything we can to fight for our patients and their access to abortion, and that’s why we’re asking the Supreme Court to step in to stop this abortion ban from taking effect. Without relief, starting Wednesday most Texans will be forced to travel hundreds of miles out of state for their abortion, if they can afford to do so. The harm this law will cause will be insurmountable for far too many Texans, particularly Black, Latino, Indigenous people, those with low incomes, and Texans in rural areas who already face significant barriers to care. To be clear: Planned Parenthood health centers remain open, and our providers will see as many patients as they can, as long as they can within the law. We are asking the Supreme Court to uphold fifty years of precedent and ensure Texans won’t be denied their constitutional right to abortion.”

Kamyon Conner, Executive Director of Texas Equal Access (TEA) Fund:

“In the last decade, the Texas legislature has passed many racist, classist, and dangerous abortion restrictions that have made it very difficult to access care. That’s why we are asking the Supreme Court to stop it. This law essentially bans abortions and codifies intimidation. Anti-abortion politicians are empowering extremists to use lawsuits to harass and intimidate anyone who helps someone get an abortion. Abortions help people plan their futures and thrive. Everyone should be able to get abortion care when they need it—without stigma or harassment. These extremists are relentless, but we’re ready to fight so that we can continue helping each other, the way abortion funds always have.”