U.S. Supreme Court Fails to Block Texas’s Unconstitutional Abortion Ban and Vigilante Scheme

December 10, 2021–The U.S. Supreme Court today failed to block Texas’s unconstitutional abortion ban and vigilante scheme that has denied Texans their constitutional right to abortion and ended most abortion access in the state.

“The Supreme Court has ruled that federal courts are powerless to protect constitutional rights in the face of a devious state scheme that hands over state enforcement power to private citizens,” says Marc Hearron, Senior Counsel of the Center for Reproductive Rights, who argued the case. “The Court has effectively endorsed Texas’s efforts to subvert the U.S. Constitution.”

The Court ruled in two cases challenging the law: Whole Woman’s Health v. Jackson, a case brought by the Center for Reproductive Rights and its partners on behalf of a coalition of Texas abortion providers, funds, practical support networks, clergy and others, and United States v. Texas, a case brought by the U.S. Department of Justice (DOJ).

In a 5-4 decision, the Court dismissed the most significant part of the Center’s case, ruling that the providers could not bring suit against the classes of state judges and clerks or the state Attorney General.

While the Court allowed a narrow portion of the case to proceed in federal court against the Texas Medical Board and other licensing authorities, an injunction against those officials would not block Texas’s vigilante scheme.

The Texas law, S.B. 8, which went into effect September 1, bans abortion care after approximately six weeks of pregnancy, before many know they’re pregnant. The law was designed to skirt judicial review by incentivizing individuals—including anti-abortion activists—to bring costly and harassing lawsuits against anyone who provides abortion care or assists someone in obtaining an abortion in violation of the ban. In addition to abortion providers, individuals subject to lawsuits could include nurses, staff members, abortion funds, patients’ means of transportation, and patients’ family members or friends.

“It’s stunning that the Supreme Court has essentially said that federal courts cannot stop this bounty-hunter scheme enacted to blatantly deny Texans their constitutional right to abortion,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “The Court has abandoned its duty to ensure that states do not defy its decisions. For 100 days now, this six-week ban has been in effect, and today’s ruling means there is no end in sight. Pregnant people will continue to live in a state of panic and uncertainty.”

The Texas scheme—not the right to abortion itself—was the issue before the Court when the Center argued its case on November 1. Yet by limiting the path to challenge the law in federal court, the ruling allows the state to deny people the ability to exercise their right to abortion—and gives the green light to other states wishing to follow Texas’s example.

Justices’ Dissents Cite Ruling’s Impact on Federal Rights, the Constitution, and the Court

Chief Justice John Roberts and Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan dissented and warned about the impact of today’s ruling on federal rights, the Constitution, and the Court itself.

Chief Justice Roberts wrote, “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.” The Texas law, he added, “has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution. . . The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”

In her dissent—which was joined by Justices Breyer and Kagan—Justice Sotomayor wrote, “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. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

Justice Sotomayor continued, “For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body. . . . 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.” 

S.B. 8 Leaves Texans Desperately Searching for Abortion Care

For more than three months, patients in Texas have been denied access to their constitutional right to abortion. Desperately searching for abortion care, many have been forced to travel to neighboring states to obtain care or have been forced to carry pregnancies against their will. Before S.B. 8 took effect, approximately 85-90% of abortions in Texas were performed after six weeks of pregnancy.  Clinics in neighboring states have reported huge increases in Texans seeking abortion care, resulting in weeks-long wait times for all patients.

“We will continue to seek justice in the shred of the case that the Court has allowed to go forward and seek every other legal means to stop this catastrophic law,” Northup added. “The Senate needs to pass the Women’s Health Protection Act immediately to restore the constitutional right to abortion in Texas and stop it before it spreads to other states.”

The Center’s partners in Whole Woman’s Health v. Jackson are Planned Parenthood Federation of America, the Lawyering Project, the American Civil Liberties Union, the ACLU of Texas, Morrison & Foerster LLP, and Austin attorney Christen Mason Hebert.

Court Rules Against the DOJ in Related Case

In a separate ruling in the DOJ case—which was also argued at the Supreme Court on November 1—the Court denied the federal government’s request to block the law and sent the case back to the Fifth Circuit Court of Appeals. That court has already refused to grant relief to restore abortion care in considering previous challenges to the Texas law.

“For nearly 50 years, the Supreme Court has said that abortion is protected by our Constitution, yet they are allowing Texans to be denied that right. This is not okay,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance and the Center’s client in the case.    

Center Awaits Supreme Court Ruling on Mississippi Abortion Ban that Directly Challenges Roe v. Wade

Today’s ruling was issued on the heels of the Center’s December 1 Supreme Court oral argument defending the right to abortion in a different case out of Mississippi that could impact abortion rights and access across the nation. That consequential abortion rights case, Dobbs v. Jackson Women’s Health Organization, challenges Mississippi’s law banning abortion at 15 weeks of pregnancy. It marks the first time the Court will rule on the constitutionality of a pre-viability ban since Roe v. Wade in 1973. A decision in the case is expected sometime in 2022.

Read more:

• Supreme Court Decision in Whole Woman’s Health v. Jackson
• About the case: Whole Woman’s Health v. Jackson,
• Supreme Court Decision in United States v. Texas

Photo: ©Joy Asico/AP Images for Center for Reproductive Rights