The Supreme Court Lets SB 8 Stand, But Allows Abortion Providers Their Day in Court

In a highly anticipated 8-to-1 decision issued this morning, the U.S. Supreme Court failed to block Texas’ draconian abortion law, Senate Bill 8. However, in a very small victory for clinics, the Court did allow abortion providers to challenge the ban in lower courts. 

“It’s disappointing that SB 8 is so blatantly cruel and unconstitutional and the court has decided not to grant us relief. While we hold out hope for the rest of our lawsuit, the court still failed us today,” wrote plaintiffs at Whole Woman’s Health, a network of abortion clinics in Texas, in a statement. “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.”

SB 8 bars abortion care once embryonic cardiac activity is detected, which is around six weeks, and offers no exception for rape or incest. Given that most people are not aware they are pregnant at that stage, the law amounts to a near-total ban on abortion and constitutes the most restrictive anti-abortion law in the country. It has been in effect since the U.S. Supreme Court refused to halt the extreme measure in September, inflicting irreparable damage on hundreds of Texans seeking reproductive health care. 

The Court held that abortion providers can only sue some state licensing officials, but not state court clerks and judges—the ones tasked with handling civil suits against providers—as the plaintiffs had hoped, which may make it more difficult to fully block enforcement of SB 8 down the road.  

Separately, the Justices dismissed a concurrent legal challenge against SB 8 by the U.S. Department of Justice, which filed suit in September, ruling that the DOJ does not have standing to sue and the Biden administration’s legal involvement was “improvidently granted.”

The ruling allows the case from Texas abortion providers to proceed before a federal judge in district court as initially planned in August. Any ruling blocking the law would almost surely be appealed to the conservative Fifth Circuit Court of Appeals, which often rules to uphold anti-abortion measures, setting the stage for SB 8’s possible return to the U.S. Supreme Court in the near future. 

Last week, the Justices heard oral arguments in a separate case, Dobbs v. Jackson Women’s Health Organization, which will decide the fate of a 15-week abortion ban in Mississippi. The High Court is expected to either overturn or severely chip away at Roe v Wade when it rules on Dobbs in June 2022. In that event, Texas is one of 12 states that would automatically ban all abortion care. 

“The Court should have put an end to this madness months ago, before SB 8 first went into effect. It failed to do so then, and it fails again today,” wrote Justice Sonia Sotomayor in an incisive partial dissent, along with Justices Stephen Breyer and Elena Kagan. 

Rather than focus on the constitutionality of the law and its real-world, devastating impact on pregnant Texans during Whole Woman’s v Jackson oral arguments on Nov. 1, the Justices instead reviewed the law’s unprecedented private enforcement mechanism, which not only allows but incentivizes anyone to sue an abortion provider or someone who “aids or abets” care with a $10,000 reward should they prevail in court. The Court largely allowed this “bounty hunter” style of enforcement to continue for now. 

Sotomayor admonished the Court for its “dangerous departure from its precedents, which establish that federal courts can and should issue relief when a state enacts a law that chills the exercise of a constitutional right” and seeks to evade judicial review. The Court “invites” other states to refine SB 8’s private enforcement model for nullifying federal rights, and thus, “betrays not only the citizens of Texas, but also our constitutional system of government … I fear the Court, and the country, will come to regret that choice” she wrote. 

Texas reproductive rights advocacy group Avow criticized the Supreme Court opinion for not adequately addressing that private enforcement provision—considered “one of the most egregious components” of the law—and for prolonging the suffering of Texans who are facing the onerous law’s daily impact. 

“By allowing SB 8 to remain in effect, the anti-abortion majority at the highest court of the land has essentially declared that abortion care is not a constitutionally protected right,” said Aimee Arrambide, Avow’s executive director. “This decision sends a dangerous message that they are likely to overturn almost 50 years of precedent established in Roe v Wade next summer.”