Update: Whole Woman’s Health et al. v. Jackson et al. and United States v. Texas

Texas Abortion Ban (S.B. 8) at the U.S. Supreme Court 

Background: The Texas abortion law, known as S.B. 8, bans abortion after approximately six weeks into pregnancy and creates a vigilante scheme that incentivizes individuals to bring costly and harassing lawsuits against anyone who they believe has violated the ban—with a reward of at least $10,000 paid by the person sued. The law has ended most abortion access in the state. Like all laws restricting access to abortion, the burdens imposed by S.B 8 fall hardest on those who already face structural barriers to health care, especially Black, Indigenous and other people of color, young people, and undocumented people.

On November 1, the U.S. Supreme Court heard oral arguments in two cases challenging the Texas law banning abortion around six weeks of pregnancy—one brought by abortion providers and advocates and the other brought by the Department of Justice. The ban known as SB8 has been allowed to remain in effect for 100 days. The Supreme Court issued decisions in both cases on December 10. 

• Whole Woman’s Health et al. v. Jackson et al. was filed by Texas abortion providers—led by Whole Woman’s Health—along with several abortion funds, practical support networks, doctors, health center staff, and clergy members.
• United States v. Texas was filed by the U.S. Department of Justice.

You can read the decision here. 

Ruling: On December 10th, the US Supreme Court issued decisions in two cases challenging Senate Bill 8, the Texas abortion ban that has been in place for 100 days. 

Summary: 

• The Court declined to rule on the Department of Justice’s challenge to SB8. Instead, they sent it back to the Fifth Circuit Court of Appeals, which has already lifted emergency relief blocking the law allowing it to go into effect. 
• It allowed the challenge from abortion providers and other to proceed, but only against a narrow set of defendants. 
• SB8 is still in effect. The Biden Administration request to block the law and the request from advocates and providers was denied. 
• By letting this law remain in effect, the Supreme Court is allowing Texas to override the U.S. Constitution and deny a fundamental right—opening the floodgates to copycat laws in states across the country. We have already seen similar legislation introduced in several states. 

What does this mean? Well while the Court did not put a complete end to the lawsuit, it failed to block the law, including the bounty-hunting scheme where anyone who helps someone get an abortion may be sued. That means other states are likely to copy this discriminatory and draconian attack on the right to abortion – in fact, several states have already introduced their own version.  Providers and advocates in Texas and across the country will continue to fight this law in the courts and work to restore abortion access in Texas and for every person who needs – or wants care. 

It is important to note that these cases are about much more than abortion; everyone who cares about their constitutional rights should be concerned. This kind of scheme could easily be used to ban free speech, marriage equality, or any other right. What today’s decision further confirms the dire threat to abortion access and rights in this country – and the need to get and stay organized. We know that Roe is crucial, but it’s not sufficient to ensure that abortion is accessible and affordable in the U.S. We need to think beyond Roe to ACCESS FOR ALL. 

So what’s next? 

• Advocates, funds and providers will continue to challenge the law in the courts AND to do all they can to get people the care they need.  
• Congress needs to pass laws to protect abortion access, including getting rid of coverage restrictions—like the Hyde Amendment, which denies health coverage in federal insurance programs. 

Here in Rhode Island, we need to address the state-level abortion bans and restrictions that have made abortion care harder and harder to access, especially for people of color and people having difficulty making ends meet. That means calling on our state lawmakers to take action to pass our bill – the Equality in Abortion Coverage Act (EACA).