Supreme Court sides with Texas in latest battle over extreme abortion law

On Jan. 20, the Supreme Court once again refused to take action to speed up litigation over S.B. 8, Texas’s six-week abortion ban. That means the Texas law, which took effect in September 2021, will likely stay in place for several more months. 

The case was back at the Supreme Court due to a procedural move by the state that is designed to slow down any review of the law and keep it away from a federal district court judge who already blocked enforcement of the law in early October. 

In December, the Supreme Court ruled in a 5-4 decision that abortion providers could sue only a very narrow class of officials in Texas — basically, heads of medical and licensing boards. Providers had hoped to be able to sue state judges and clerks to enjoin them from hearing the bounty hunter-style lawsuits the Texas law allows, under which anyone can sue someone who “aids or abets” a person in obtaining an abortion. The Supreme Court ruled that they couldn’t. 

Typically, after such a ruling, the case, Whole Woman’s Health v. Jackson, would go back down to the federal district court in Texas because it is a federal court case. But that would send it back down to the judge who had already blocked it. So Texas asked the U.S. 5th Circuit Court of Appeals to “certify” the question to the Texas State Supreme Court. Certifying a question asks the federal court to send the case to the state’s highest court so that it can weigh in on whether the licensing officials could be sued. Earlier this week, the 5th Circuit agreed to send it to the state Supreme Court. Doing so is expected to add months to the litigation.

This is a highly unusual move. The Texas assistant solicitor general who argued the case before the 5th Circuit couldn’t name any other time when the state’s highest court was asked to weigh in after the U.S. Supreme Court already had. Abortion providers asked the Supreme Court to step in, order the 5th Circuit to withdraw certification, and send it to federal court. Yesterday, the Court denied that request without issuing a ruling.

Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented, with Breyer writing a brief dissent and Sotomayor a lengthier one. Sotomayor called the majority out for allowing Texas “yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation.” Sotomayor ended her dissent with a clear-eyed statement of precisely what was at stake in the matter: “This 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.”

It’s difficult to quantify how many people are currently unable to get an abortion in the state, but in the first month of the six-week ban, abortions fell by half. 

Many, if not most, people don’t know they’re pregnant until past the six-week mark. Indeed, even those tracking their cycles quite closely will learn they are pregnant at around the four-week mark, leaving them only two weeks to obtain an abortion. That short time frame makes getting the procedure very difficult.

With abortion functionally unavailable for most people in Texas, people needing the procedure have to travel great distances to get it. The Guttmacher Institute, which researches reproductive health issues, calculated that people in the state will now need to drive an average of 247 miles to get to the nearest clinic that provides abortions. Guttmacher also reports that abortion providers in bordering states are facing capacity problems because the amount of Texas patients seeking an abortion is lessening the availability of appointments for people who live in those states. 

Experts say that, absent a nationwide solution that comes from Congress, other states will follow Texas’s lead. Nancy Northrup, the president and CEO of the Center for Reproductive Rights, one of the organizations litigating over S.B. 8, says that seven states have already introduced copycat bills. The most recent of these is Oklahoma, where an anti-abortion legislator is proposing a law that would allow anyone to sue a provider who performs an abortion at any time after conception. 

Northrup also issued a statement noting the solution to this problem runs through Congress, not the courts. 

“Texans 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,” Northrup wrote. “It’s time for the Senate to take action and pass the Women’s Health Protection Act, which has already passed the House and has the Biden Administration’s support.”

Published with permission of The American Independent Foundation.