The U.S. Supreme Court has agreed to review Texas’s extreme abortion ban—and will do so on an expedited basis.
In response to emergency requests by the Center for Reproductive Rights and the U.S. Department of Justice to review the ban, the Supreme Court will hear oral arguments in both cases in less than two weeks, on November 1.
However, the Court declined to rule on a request to block the Texas law, S.B. 8, before the November 1 argument date. The ban—which prohibits abortion care after approximately six weeks of pregnancy—remains in effect pending the Court’s ruling in the cases. The law took effect September 1 and has ended almost all abortion access in the state.
“…the State (empowered by this Court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State’s gambit has worked. The impact is catastrophic.”
Texas law S.B. 8, designed to skirt judicial review, also incentivizes individuals—including anti-abortion activists—to seek monetary penalties of at least $10,000 by suing anyone who provides an abortion or assists someone in obtaining one after the law’s limit. The law was enacted in direct violation of Roe v. Wade, which recognized the right to pre-viability abortion.
Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement:
“The Supreme Court’s action today brings us one step closer to the restoration of Texans’ constitutional rights and an end to the havoc and heartache of this ban. We are enormously disappointed that the Court has left the law in effect for now, forcing those with means to leave the state to access constitutionally protected abortion services and leaving others with no options at all. However, we are confident that when the Court ultimately rules in these cases, it will reject the state of Texas’ cynical ploy to enact a brazenly unconstitutional abortion ban.”
Supreme Court to Hear Arguments in Cases from Both the Center and the DOJ
The Court will hear arguments in two cases challenging the Texas law: one by the Center and its partners, Whole Woman’s Health v. Jackson, and one by the Department of Justice, United States v. Texas.
In Whole Woman’s Health et al. v. Jackson et al., filed in July to block the law from taking effect, the Center and its partners are representing Texas abortion providers led by Whole Woman’s Health and other independent abortion clinics, doctors, clinic staff, abortion funds, support networks, and clergy members. In this case, the Supreme Court will decide whether federal courts have the power to block 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. In September, the Supreme Court had refused to block the law before it took effect, citing “complex and novel” procedural questions about whether it has the authority to do so. Today’s order means that the Court has agreed to hear arguments on those procedural questions.
In United States v. Texas, filed in September, the U.S. Department of Justice challenged the Texas law because S.B. 8 attempts to nullify the federal Constitution. In early October, a federal district court granted the DOJ’s request to temporarily block the law, but an appellate court let the law take effect again less than 48 hours later. The Supreme Court will decide both whether to reinstate the order blocking the law and whether the United States government has the authority to bring this case against the State of Texas to prevent its state court judges, state court clerks, other state officials, and private parties from enforcing S.B. 8.
With the November 1 argument at the Supreme Court in Whole Woman’s Health v. Jackson, the Center will be arguing two major abortion rights cases this term. On December 1, the Center will argue against a Mississippi abortion ban in Dobbs v. Jackson Women’s Health Organization.
Audio of both arguments will be streamed live on the Supreme Court’s website.