On the 101st day of Texas Senate Bill 8 banning abortions after six weeks, the Supreme Court finally responded. The court issued an opinion Friday stating abortion providers can challenge the law, sending the case back to the circuit court, but allowing S.B. 8 to remain law during the legal challenge. This means people in Texas will be unable to access abortion after six weeks gestation unless a brave abortion provider steps up, opening themselves up to civil litigation for aiding and abetting an abortion like Dr. Alan Braid of San Antonio.
Justice Neil Gorsuch delivered part of the court’s opinion, which is rarely a good sign. The court found that abortion providers may pursue a pre-enforcement challenge to S.B. 8, meaning they do not have to wait to file a lawsuit until an abortion provider is sued. Great! But his part of the opinion also said S.B. will remain in effect. Bad!
Chief Justice John Roberts, joined with Justices Stephen Breyer, Sonia Sotomayor and Kagan, wrote a concurring opinion (he agrees with parts) and a dissent. “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” he wrote.
Roberts agrees that abortion providers can bring pre-enforcement challenges. “Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief with delay,” he wrote. However, this simply restarts the legal process at the district court level with the law still in effect. This decision is messy and shows some real fracturing among how the justices are approaching abortion at the court. Though, don’t take this mess as a good sign for Jackson Women’s Health Organization v. Dobbs, the case that could overturn legal abortion as we know it.
Whole Woman’s Health President and CEO Amy Hagstrom Miller said in a statement to Jezebel that the decision was a small respite in a long, continuing fight. “The legal back and forth has been excruciating for our patients and gut-wrenching for our staff,” she said. “We’ve had to turn hundreds of patients away since this ban took effect, and the Supreme Court’s refusal to block the law means the heartbreak doesn’t end. Texans deserve abortion care in their own communities. Our fight against this law is not over, and Whole Woman’s Health is here for the long haul.”
The fallout of S.B. 8 was immediate. Planned Parenthood health centers in the states surrounding Texas saw 1,082 percent increase in patients with Texas zip codes in the first month of the law. Researchers later found Texas patients traveled as far as the District of Columbia and California (and 10 other states) for an abortion. Independent abortion clinics, which provide the majority of abortion care in the country, have been stretched to their limits in attempt to make up the loss of Texas clinics. Jackson Women’s Health Organization, the clinic who just defended Roe v. Wade at the Supreme Court earlier this month, recently expanded the days offering abortion from 3 to 5 or even 6 if another doctor can make it.
Abortion funds, mutual aid funds that provide monetary and practical support to abortion patients, have been working overtime to pay for Texas patients to travel out of state for procedures. Asha Dane’el, board co-chair of the National Network of Abortion Funds, told Jezebel that the networks’ member funds have received “unprecedented number of requests” because of S.B. 8. “With this ban remaining in effect as the legal challenge moves forward, [abortion funds] will continue to be inundated. People working to make ends meet have been navigating the difficult terrain of abortion restrictions and bans for decades,” Dane’el said in a statement. “Whatever happens next, abortion funds will keep doing what they do best — showing up for people who need abortions, showing up for their communities, and showing up for each other.”
Then, Gorsuch’s part of the decision really got into the weeds of exactly who the abortion providers could sue, because S.B. 8's enforcement mechanism is not typical. Abortion providers would usually sue the most relevant public official (like a health department head) in these type of suits, but because S.B. 8 empowers private citizens from anywhere to sue Texans, the lawsuit was brought against a state-court clerk and judge. (The petitioners had said they had hoped to bring suit against all state-court clerks and request that the clerks be prevented from filing S.B. 8 lawsuits.)
The court dismissed the second of the cases heard in October, United States v. Texas, as “improvidently granted” with left-leaning Sotomayor dissenting.