Supreme Court Greenlights Texas Law Ending Most Abortions

Midnight order has makings of historic change

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September 2, 2021

The Supreme Court said it will allow a Texas law banning abortions once a fetal heartbeat is detected to take effect for the time being in an order coming just after midnight on Wednesday.

The vote was five to four, with Chief Justice John Roberts joining the liberal trio in dissent. The heartbeat law, known as S.B. 8, took effect first thing Wednesday morning and bans abortion as early as six weeks.

"This order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges," a short, unsigned statement from the majority reads.

Though the decision is pegged to procedural issues—the law raises clever technical obstacles that make it difficult to attack—it is a potentially momentous break with the Court’s abortion precedents. Whatever the statute’s ultimate fate, pro-choice forces saw a foreboding sign in the end of abortion services in the nation’s second-largest state. Justice Sonia Sotomayor called the outcome "stunning" in a dissenting opinion.

"Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand," she wrote. "The Court silently acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents."

S.B 8 directs private citizens, not government officials, to enforce the act through civil lawsuits. The roundabout enforcement mechanism makes it harder for abortion clinics to home in on a particular target to sue. That makes it difficult for them to establish standing to sue in the first place.

The Court’s order said those "complex and novel" procedural questions are a sufficient basis to deny the emergency challenge Texas abortion providers filed with the justices on Monday.

Successful S.B. 8 claimants are entitled to at least $10,000 in damages. Critics of the law say it outsources the constitutional dirty work to "bounty hunters" who will endanger patients and providers alike. Women seeking abortions are not liable under the act.

In a rare solo dissent, Roberts said the law’s unprecedented design is a good reason to delay its implementation. He added that the legal questions at issue are "particularly difficult," and he acknowledged the law might ultimately survive.

"The con​​sequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the state takes effect," he wrote.

President Joe Biden denounced the decision Thursday morning, calling it an "unprecedented assault on a woman's constitutional rights." He promised a "whole of government response," directing the Justice Department and the Department of Health and Human Services to look for ways the federal government can provide abortion access for Texas women. It's unclear what those actions might be.

In the meantime, clinics across Texas have stopped performing abortions once fetal heartbeats are detectable.

On a Wednesday morning call with reporters, Whole Woman’s Health CEO Amy Hagstrom Miller said her organization performed abortions in Texas until the last possible moment. At a clinic in Fort Worth, Miller said 27 women were waiting for abortions as late as 10:00 p.m. Tuesday night. Physicians on site were able to see all of them ahead of the midnight deadline.

"Whole Woman’s Health had staff and physicians performing abortions in Texas until 11:56, p.m.," she said.

"I want to make clear that today [our clinics] are providing care in accordance with the law," she added. "We are fully compliant with S.B. 8."

The Heartbeat Act also subjects to liability any person who aids and abets an illegal abortion. While the scope of that provision is unclear, support funds that offer travel subsidies and logistical help to women seeking abortions have also curtailed their operations. Anna Rupani of Fund Texas Choice, an abortion support fund challenging S.B. 8 in court, said her group will offer assistance to the extent it can under the law.

"Lawsuits filed pursuant to S.B. 8 against FTC and other abortion and practical support funds could hobble our ability to service our clients," Rupani said.

Susan B. Anthony List president Marjorie Dannenfelser called S.B. 8’s implementation a "historic moment" for the pro-life movement. Later this year, the Court will consider a Mississippi law that bans abortions after 15 weeks. The state urged the Court to use the case as a vehicle for overturning Roe.

"We are grateful for Governor Abbott’s leadership, the courage of the Texas Legislature, and all our pro-life allies in statehouses across the nation," Dannenfelser said. "With the Dobbs case on the horizon, we hope that the Court is finally ready to let this debate move forward democratically, restoring the right of states to protect our most vulnerable brothers and sisters."

The case is No. 21A24 Whole Woman’s Health v. Texas.

Update 12:00 p.m.: This piece has been updated to include comments from President Biden.

Whole Woman's Heath v. ... by Washington Free Beacon