What happens next in abortion providers' fight to challenge the Texas law
Updated December 10, 2021 at 1:50 PM ET
The Supreme Court "failed us today," wrote the abortion providers at the center of the legal challenge to S.B. 8, the controversial Texas law that allows private citizens to sue clinics that provide abortions.
"For 101 days, our patients have been left with two choices: carry a pregnancy they didn't want to begin with or jump through hoops to leave the state. It's heartbreaking and it should have never happened to begin with," wrote Whole Woman's Health, a network of abortion providers that operates four clinics in Texas.
"We'd hoped for a statewide injunction, but no clear path to it. Rest assured, we will NOT stop fighting," the provider wrote.
The narrow and complicated ruling, issued Friday morning by a vote of 8-1, allows the challenge brought by Whole Woman's Health to proceed in a lower court. In that sense, it is a victory for the provider.
But abortion rights advocates – joined in their effort by the U.S. Department of Justice – had hoped the court would issue an injunction pausing enforcement of the law.
The Supreme Court declined to do so, meaning the law remains in effect, as it has been since Sept. 1.
At the heart of S.B. 8 is a novel way of outlawing abortion after 6 weeks of pregnancy: Rather than leave enforcement to government officials, which is prohibited under Roe v. Wade, the Texas law allows private citizens to sue anybody who assists with an abortion. If successful, the person bringing the suit can win a bounty of at least $10,000, which must be paid by the defendant.
In a partial dissent, Chief Justice John Roberts wrote: "The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake."
"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. The Court has abandoned its duty to ensure that states do not defy its decisions," said Nancy Northup, president and CEO of the Center for Reproductive Rights, a legal advocacy group whose attorneys are leading the litigation.
Friday's ruling did not address the constitutionality of the law. That legal battle now returns to federal court in Austin.
That judge, U.S. District Court Judge Robert Pitman, had previously issued an injunction — "this Court will not sanction one more day of this offensive deprivation of such an important right," he wrote in his order — but that injunction was overturned by an appeals court. The case may eventually return to the Supreme Court.
In addition, S.B. 8 faces other legal challenges, including another case led by the Center for Reproductive Rights called Braid v. Stilley.
The case centers on Dr. Alan Braid, a physician who provides abortions in San Antonio. Six days after the law went into effect, Dr. Braid provided an abortion to a woman whose first-trimester pregnancy was already beyond the 6-week limit allowed by the law.
After he wrote about the abortion in an op-ed for The Washington Post, Dr. Braid was sued under S.B. 8 by three people: Felipe Gomez, a resident of Chicago, Oscar Stilley, a resident of Cedarville, Ark., and Wolfgang Hirczy de Mino, a resident of Bellaire, Texas.
Braid's lawsuit effectively asks a federal court in Illinois to roll all three claims against him together and rule them invalid by finding S.B. 8 to be unconstitutional. That suit was filed in October. [Copyright 2021 NPR]
