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BY CARRIE N. BAKER | On Friday, the U.S. Supreme Court refused to block a clearly-unconstitutional abortion ban in Texas, leaving in place S.B. 8, which bans most abortions after six weeks of pregnancy—before many women even know they are pregnant. The Court’s ruling substantially narrows options to challenge the law in federal court, and there is no fast option for a Texas Supreme Court ruling in state court, say legal experts.
“It’s stunning that the Supreme Court has essentially said that federal courts cannot stop this bounty-hunter scheme enacted to blatantly deny Texans their constitutional right to abortion,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which represents abortion providers in one of the cases before the Court. “The Court has abandoned its duty to ensure that states do not defy its decisions. For 100 days now, this six-week ban has been in effect, and today’s ruling means there is no end in sight. Pregnant people will continue to live in a state of panic and uncertainty.”
The case out of Texas, Whole Woman’s Health v. Jackson, was brought by abortion providers. Eight of the nine justices—excluding Justice Clarence Thomas—agreed that abortion providers could sue, but the justices were split when it came to deciding against whom specific lawsuits could be levied. A 5-4 majority of the Court dismissed the most significant part of the case, ruling that they could not bring suit against state judges and clerks or the state attorney general. The Court also ruled that a narrow portion of the case may proceed against the Texas Medical Board and other licensing authorities, but this would not prevent people from filing bounty-hunter lawsuits against anyone who helps someone obtain an abortion.
At issue in the cases was whether federal courts could rule on the constitutionality of the law before enforcement, or if abortion providers would have to violate the law and then defend themselves by arguing that the law was unconstitutional, which would subject providers to burdensome and expensive litigation and take a long time.
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