The U.S. Supreme Court denied abortion providers’ request Thursday to return their case, which challenges Senate Bill 8, a law enacted on Sept. 1 that banned abortions after approximately six weeks, back to federal district court from the 5th U.S. Circuit Court of Appeals.
The Supreme Court's three liberal justices dissented.
Earlier this week, the 5th Circuit sent the case Whole Woman’s Health vs. Jackson to the Texas Supreme Court to certify a question on state law. Abortion providers have a limited scope since a December ruling from the U.S. Supreme Court allowed them to pursue only state medical licensing officials.
“Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation,” Justice Sonia Sotomayor wrote in her dissent, joined by Justices Stephen Breyer and Elena Kagan.
“The Court may look the other way, but I cannot,” Sotomayor wrote.
The primary case challenging the new law was argued before the U.S. Supreme Court on Nov. 1, and the ruling on Dec. 10 allowed SB 8 to stand while allowing some challenges to continue, but with a limited scope of who could be sued. As a result, abortion providers resumed their suit, this time arguing that Texas state medical licensing officials could discipline doctors who violate the six week ban.
The defendants say state licensing officials were never included in SB 8, which relies on private civil enforcement. SB 8′s unique enforcement mechanism lets private citizens sue those who “aid or abet” abortions after fetal cardiac activity is detected.
Texas Sen. Bryan Hughes, the author of SB 8, said that even if the courts did come back and say that Texas licensing officials could not discipline those who violate SB 8, the law would still be effective.
“Even if the courts were to do that, it would have no effect on the operations and the delay, Senate Bill 8 would still work,” Hughes told The Dallas Morning News.
The plaintiffs said the move to the Texas Supreme Court has only caused delays. The Texas Supreme Court could accept or deny the question for certification as soon as Friday.
“Texans have been without abortion access for almost five months now, and there is no end in sight because the Supreme Court has done nothing to stop this unconstitutional ban. It is allowing the state of Texas to deprive people of a constitutional right,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.
Amy Hagstrom Miller, CEO of Whole Woman’s Health, said, ”Make no mistake: Texans are still suffering every single day under this law. It breaks my heart every time our clinic staff are forced to deny pregnant people care and turn them away.”
Meanwhile, opponents to abortion are taking to the streets in Washington, D.C., and Austin, among other cities across the nation to protest against what could be the last anniversary of Roe vs. Wade, a case which originated in Dallas County and effectively legalized abortion until viability on Jan. 23, 1973.
In June, the Supreme Court is expected to issue a decision on Dobbs vs. Jackson, a Mississippi case that directly challenges Roe vs. Wade.
