Texas Supreme Court Ruling Effectively Ends Federal Court Challenge to State’s Abortion Ban

The Texas Supreme Court today dealt another blow to efforts to challenge the state’s draconian abortion ban that has denied Texans most abortion access since September 1. The Texas court ruled that the case cannot proceed against the Texas Medical Board and other similar state licensing officials, who were the only remaining defendants in the challenge. The ruling effectively ends the federal court challenge to the state’s ban.

The case, Whole Woman’s Health v. Jackson, brought by the Center for Reproductive Rights and its partners, challenges Texas S.B. 8, which bans abortion after about six weeks of pregnancy and shifts enforcement of the law to individuals, rather than the state. The law 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.

In today’s decision, the Texas court ruled that state licensing officials do not have the authority—directly or indirectly—to take enforcement action based on violations of S.B. 8, leaving no other defendants against whom the case can proceed. As a result, the ban will stay in effect.

“We are in a moment of crisis not only for reproductive rights but for our justice system and the rule of law,” said Nancy Northup, president and CEO of the Center. “With this ruling, the sliver of this case that we were left with is gone. An unconstitutional ban on abortion after six weeks continues unchecked in the state of Texas. The courts have allowed Texas to nullify a constitutional right. We will continue to do everything in our power to right this wrong.”

In December, the U.S. Supreme Court refused to block the Texas law, dismissing most of the case and allowing only a small part of the case to move forward in lower court. That part of the case was against the Texas Medical Board and other state licensing officials and sought to prevent them from taking disciplinary actions against doctors and other health professionals who provided abortion care in violation of S.B. 8.

“With today’s ruling, Texas abortion providers will continue to be threatened with an onslaught of lawsuits if they were to violate Texas’s blatantly unconstitutional six-week ban,” said Marc Hearron, senior counsel at the Center who argued the case. “And that will continue to chill the provision of abortion care throughout the state.”

Texans Denied Abortion Access Since September 1

Since S.B. 8 took effect more than six months ago, most access to abortion has ended in the state, causing panic, chaos and harm for patients seeking abortion care in Texas and beyond.

Patients in Texas are being turned away in droves, prevented from accessing time-sensitive abortion care, and forced to travel hundreds of miles to other states to access care. Those who can’t afford to travel are being forced to carry pregnancies against their will. As with other abortion restrictions, people who already face obstacles to accessing care—such as those living on low incomes, Black and brown communities, young people, and people in rural areas—are disproportionately impacted by the Texas ban.

“The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance and the client in the case. “Where will Texans go then? The more states that pass these bans, the harder it will be for anyone in this region to get abortion care.”

Already this year, at least 10 states have introduced or pre-filed bills copying Texas S.B. 8. In Oklahoma, the legislature is expected to pass a copycat bill by the end of the month, which has an immediate effective date. That means by the end of March, abortion may be banned after six weeks in Oklahoma—a state where many Texans have been traveling to find abortion services.

U.S. Supreme Court Will Rule Soon on Mississippi’s Request to Take Away the Constitutional Right to Abortion

Before the end of its term in June, the U.S. Supreme Court will decide another Center case, Dobbs v. Jackson Women’s Health Organization, which challenges a Mississippi 15-week abortion ban. In the case, the state of Mississippi has asked the Court to overturn Roe v. Wade and nearly 50 years of precedent and rule there is no constitutional right to abortion.

If Roe falls, almost half the U.S. states are poised to ban abortion entirely, leaving no access to abortion care across much of the Midwest and the South.

Read more:

• Texas Supreme Court ruling in Whole Woman’s Health v. Jackson, 03.11.22
• Press release: Texas Supreme Court Decision Means Abortion Ban Challenge Will Be Thrown Out, 03.11.22
• Desperately Seeking Care: Six Months of Texas’s Extreme Abortion Ban, 03.01.22