Texas Abortion Ban Returns to Supreme Court

09.23.2021 – (PRESS RELEASE) Today, a broad coalition of Texas abortion providers—led by Whole Woman’s Health—along with abortion funds, doctors and other organizations, once again asked the U.S. Supreme Court to intervene in a case challenging Texas’ ban on abortion after six weeks of pregnancy (S.B. 8). In an attempt to expedite the case, plaintiffs are asking the Supreme Court to hear the defendants’ motions to dismiss the case, which were denied by the district court and then appealed to the Fifth Circuit Court of Appeals, where they are currently pending. The plaintiffs have asked that the Supreme Court hear the appeal on an expedited basis, without waiting for a further ruling from the Fifth Circuit.

S.B. 8 has now been in effect for 23 days and has eliminated the vast majority of abortion access in the state. Plaintiffs previously asked the Supreme Court to block the law before it took effect on September 1, which the Court refused to do. Clinics in neighboring states have reported huge upticks in patients traveling from Texas since the law took effect. For instance, an Oklahoma clinic reported that two-thirds of the phone calls they receive are now from Texas patients.

Intervention by the Supreme Court is urgently needed because, despite the great harm the ban is causing, the Fifth Circuit has set a schedule that will not allow the appeal to be heard before December. In a separate lawsuit challenging S.B. 8 in state court—brought by Planned Parenthood providers—the Texas Multidistrict Litigation Panel indefinitely stayed all proceedings in the trial court today.

In a separate federal lawsuit, the Department of Justice is suing Texas and requesting that the law be blocked. A preliminary injunction hearing in the DOJ’s case has been set for October 1 in district court. In a press conference, Attorney General Merrick Garland said of the law: “This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear.”

Yesterday, a copycat bill was introduced in the Florida legislature, and lawmakers in many other states have voiced their intent to introduce similar bills. Tomorrow, the U.S. House of Representatives will vote on a federal bill that would protect against abortion bans like the one in Texas, as well as the Mississippi ban that the Supreme Court will hear later this year. That bill—the Women’s Health Protection Act—is a response to the hundreds of state laws passed in recent years designed to block access to abortion care.

S.B. 8 bans abortion after six weeks into a pregnancy—before many 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 in Texas 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 physician who provides an abortion; 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. 

Plaintiffs in this case 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: 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 would take effect on September 1.  
• August 25: The federal district court judge denied the defendants’ 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 defendants’ motions to dismiss.  
• August 29: The plaintiffs filed for emergency relief with the Fifth Circuit, which was quickly denied.  
• August 30: The plaintiffs filed an emergency request with the U.S. Supreme Court, asking it to block the law before it could take effect on September 1 or allow district court proceedings to resume. 
• September 1: S.B. 8 took effect after the Supreme Court did not respond to plaintiffs’ request before the law’s effective date.   
• September 2: The U.S. Supreme Court denied the plaintiffs’ emergency request to block the law and allowed Texas’s six-week abortion ban to remain in effect. The case returned to the Fifth Circuit for briefing on defendants’ appeal of the district court’s denial of their motions to dismiss.
• September 10: The Fifth Circuit issued an order explaining its refusal to block the law, and expedited the defendants’ appeals to “the next available oral argument panel.”
• September 22: the Fifth Circuit issued a briefing schedule that will not allow the case to be heard until at least December.
• September 23 (Today): Plaintiffs filed a petition for writ of certiorari before judgment with the U.S. Supreme Court asking it to hear defendants’ appeal on an expedited basis. If granted, the case will bypass further proceedings in the Fifth Circuit.

You can read the full petition for writ of certiorari before judgment here.

Quotes from plaintiffs and litigators:  

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance: 
“For 23 days, we’ve been forced to deny essential abortion care for the vast majority of patients who come to us. Most of those we’ve turned away told us they would not be able to make it out of Texas for care. I don’t know what happened to these patients after they left our clinics, but I can’t stop thinking about them. Forcing our staff to tell patients ‘no’ day after day is cruel. This chaos must come to an end, and that is why we are going back to the Supreme Court today.”

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

“We’re asking the Supreme Court for this expedited appeal because the Fifth Circuit has done nothing to change the dire circumstances on the ground in Texas. We need this case to move as quickly as possible. Right now, patients are being forced to travel hundreds of miles in the middle of a pandemic to find abortion care. But many people can’t afford to do that. We’re doing everything we can to block this ban and restore abortion access in Texas.”

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

“Planned Parenthood call centers have become crisis hotlines and health center staff have become crisis counselors. For three weeks, Texans have been without access to basic health care that is their constitutional right — forced to travel out of state to get care or carry pregnancies against their will. With this request today, Planned Parenthood, along with our partners, is urging the Supreme Court to move our legal challenge along. Our patients in Texas can’t wait. We’ll never stop fighting for our patients and will leave no stone unturned in our effort to restore abortion access in Texas.”  

Julia Kaye, staff attorney, ACLU Reproductive Freedom Project:
“For half a century, the Supreme Court has upheld the fundamental right to end a pregnancy. But for the past three weeks, five justices have shrugged their shoulders while Texas politicians do an end-run around the Constitution and impose devastating harm on countless Texans, especially people of color. Already, politicians in other states are lining up to propose copycat bills that insult the Constitution, turn neighbor against neighbor, and force people to suffer the serious risks and pains of pregnancy against their will. It is past time for the Supreme Court to step in and right this grave injustice.”

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MEDIA CONTACTS:

Center for Reproductive Rights: center.press@reprorights.org, 917-637-3649 

Planned Parenthood: media.office@ppfa.org, 212-261-4433

ACLU: aeverett@aclu.org

ACLU of Texas: media@aclutx.org

The Lawyering Project: media@lawyeringproject.org