(Updated 2.24.22) On December 10, 2021, the U.S. Supreme Court issued its ruling in this case, refusing 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 case was argued before the Court on November 1.

Summary

The Center for Reproductive Rights and its partners brought the case to challenge Texas’s S.B. 8, which bans abortion after approximately six weeks of pregnancy, before many know they’re pregnant.  The law, S.B. 8, also incentivizes 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. The Texas law took effect September 1, 2021.

The lawsuit in Whole Woman’s Health v. Jackson argues that S.B. 8 blatantly violates Texans’ constitutional right to privacy and liberty as established by Roe v. Wade nearly 50 years ago. The law also violates the constitutional rights of abortion providers and supporters, including their right to equal protection under the law, and their First Amendment rights to free speech and access to the courts.

The Center argued the case at the U.S. Supreme Court on November 1, 2021. The issue before the Supreme Court was whether federal courts have the power to review Texas’s abortion ban, which prohibits the exercise of a constitutional right, by delegating to the general public the authority to enforce that prohibition through civil actions.

About Texas’s S.B. 8

About Texas’s S.B. 8

Under S.B. 8, anyone who successfully sues another person or provider will be entitled to at least a $10,000 monetary award, an injunction preventing future violations, as well as attorney’s fees and costs. Lawsuits could be filed against both abortion providers and a broad range of people—considered by the law to be “aiders and abettors”—including a person who drives their friend to obtain an abortion; abortion funds providing financial assistance to patients; health center staff; and a member of the clergy who counsels or assists an abortion patient. People who successfully defend themselves from such lawsuits, however, are prohibited under S.B. 8 from recovering their fees and costs. 

The law attempts to evade legal accountability in court by shifting enforcement from state officials to private individuals. If permitted to take effect, abortion providers, clinic staff, and abortion funds could be saddled with endless lawsuits that consume their time and resources and prevent them from providing health care services, potentially forcing them to ultimately shut down.

About the case

About the case

The Center argued this case at the U.S. Supreme Court on November 1, 2021. The issue before the Supreme Court was whether federal courts have the power to review Texas’s abortion ban, which prohibits the exercise of a constitutional right, by delegating to the general public the authority to enforce that prohibition through civil actions.

The Center and its partners filed this case on July 13 in an attempt to block the law before it took effect, representing the plaintiffs: Texas abortion providers led by Whole Woman’s Health and other independent abortion clinics, doctors, clinic staff, abortion funds, support networks, and clergy members. (The Center has also filed a separate lawsuit in district court, Braid v. Stilley, defending a Texas physician who violated the Texas ban and asking the court to strike the law down as unconstitutional.)

Defendants in the lawsuit include every state court trial judge and clerk in Texas, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the attorney general, and Mark Lee Dickson, Director of Right to Life East Texas, an individual who has threatened to sue under the new law. Each of these parties will have a role in enforcement of S.B. 8.

However, the Fifth Circuit Court of Appeals allowed the law to take effect and blocked further proceedings from going forward in the district court.  The Center and its partners then filed an emergency request with the U.S. Supreme Court asking it to block the Texas abortion ban before it’s effective date of September 1. But in a contentious 5-4 ruling, the Supreme Court denied that request, citing “complex and novel” procedural questions about whether it has the authority to do so.

In late September, the plaintiffs filed a new request with the Supreme Court, urging the Court to hear the case without waiting for a final ruling from the Fifth Circuit. On October 22, the Supreme Court granted an emergency request to hear the case, along with a case by the U.S. Department of Justice, setting arguments for both cases on November 1. While the Court agreed to hear the case and arguments on the procedural questions it had earlier refused to consider, it declined to rule on a request to block the law before the argument date.

The Center filed its opening brief with the Supreme Court in the case on October 27.

About the ruling

About the ruling

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.

After the Supreme Court remanded the case to the Fifth Circuit, Texas on December 16 asked the Fifth Circuit to certify to the Texas Supreme Court the question of whether the state licensing officials have any enforcement authority.  On December 27, the appellate court issued an order scheduling oral argument on the State’s motion for January 7, 2022.  The order was accompanied by a dissent from Judge Higginson, who wrote that the case should be immediately remanded to the district court.  The Center on December 29 filed a motion in the Fifth Circuit for reconsideration, asking the appellate court to remand the case to the district court, but the motion was denied the following day. Oral arguments were held on January 7 at the Fifth Circuit and on January 17 the court ruled in favor of Texas and sent the case to the Texas Supreme Court. The ruling is inconsistent with the U.S. Supreme Court’s decision in December 2021 and will further delay the case challenging the Texas ban, which has ended most abortion access in the state since September 1. Oral argument took place at the Texas Supreme Court February 24.

On January 3, 2022, the Center filed a petition for a writ of mandamus, requesting that the U.S. Supreme Court order the Fifth Circuit to remand the case to the district court. On January 20, the Court denied the request in a 6-3 vote.

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