Late last night, in a contentious 5-4 ruling, the U.S. Supreme Court denied the emergency request filed by the Center for Reproductive Rights and its partners to block Texas’s radical new abortion ban, which took effect September 1.
The law, S.B. 8, bans abortion care after approximately six weeks of pregnancy—before many people know they’re pregnant. Since approximately 85 to 90 percent of people who obtain abortions in Texas are at least six weeks into pregnancy, the law effectively ends almost all abortion care in the nation’s second-largest state.
S.B. 8 also shifts enforcement from state officials to private individuals, incentivizing individuals—including anti-abortion activists—to seek monetary penalties by suing anyone who provides abortion care or assists someone in obtaining care in the state.
“We are devastated that the Supreme Court has refused to block a law that blatantly violates Roe v. Wade,” said Nancy Northup, president and CEO of the Center. “Right now, people seeking abortion across Texas are panicking–they have no idea where or when they will be able to get an abortion, if ever. Texas politicians have succeeded for the moment in making a mockery of the rule of law, upending abortion care in Texas, and forcing patients to leave the state – if they have the means – to get constitutionally protected healthcare. This should send chills down the spine of everyone in this country who cares about the constitution. We will keep fighting this ban until abortion access is restored in Texas.”
Strong Dissents from Four Justices—Including Chief Justice John Roberts
Four Justices dissented from the Court’s ruling, including Chief Justice John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan. Each wrote their own dissents calling for the law to be blocked.
Highlights from the dissents include:
- “The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.” –Chief Justice Roberts
- “The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. … Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. …” –Justice Sonia Sotomayor
- “I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.”—Justice Stephen Breyer
- “Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.”—Justice Elena Kagan
Even Before the New Texas Ban, Abortion Care Was Difficult to Access in the State
Before S.B. 8 went into effect, abortion services were already extremely difficult to access in Texas. Restrictions have forced health centers to close and have pushed access out of reach for many. Other restrictions include state-mandated biased counseling, a 24-hour mandatory delay that forces patients to make two trips to the clinic and shoulder additional costs, a ban on the use of telemedicine for abortion, and a parental consent requirement.
As with other abortion restrictions, S.B. 8 will disproportionately harm people who already face discriminatory obstacles to accessing health care, including people of color, those living on low incomes, and those in rural areas. People struggling to make ends meet must often delay care to secure funds, and Texas prohibits coverage of abortion care through its Medicaid program and in nearly all private insurance plans.
More About the Fight to Stop Texas’s Extreme Abortion Ban
The emergency request at the Supreme Court was filed August 30 on behalf of Texas abortion providers led by Whole Woman’s Health, doctors, clinic staff, abortion funds, support networks, and clergy members by the Center, Planned Parenthood Federation of America, the American Civil Liberties Union, the ACLU of Texas, the Lawyering Project, Morrison & Foerster LLP, and Austin attorney Christie Hebert.
Besides asking the Court to block the law, the request asked it to allow district court proceedings to continue. On August 25, the district court had denied the defendants’ motion to dismiss the case brought by the Center and its partners on July 13. The emergency request to the Supreme Court came after the Fifth Circuit Court of Appeals on August 29 denied the plaintiffs’ request to block the law, paused district court proceedings, and refused to take any action to prevent the ban from going into effect.
“We are devastated by today’s ruling,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance. “Our staff and providers are so afraid. We are complying with the ban, and our four Texas clinics are still open. But let me ask you: Is this how you want someone you know and love to experience abortion? Please join us to fight back. Texans deserve better.”
- Case background: Whole Woman’s Health et al. v. Jackson et al.
- Supreme Court Ruling Ends Most Abortion in Texas, 09.02.21 (press release)
- Center Asks U.S. Supreme Court to Block Texas Law That Would Prohibit Almost All Abortion Care in the State, 08.30.2021
- Fate of Texas Abortion Ban is with the Supreme Court, 08.30.2021 (press release)
- Center and Partners File Lawsuit to Block Texas Abortion Ban, 07.13.2021
- Abortion Restrictions in Texas