On December 10, the highest court in the nation ruled 5-4 in allowing abortion providers in Texas to continue to challenge Texas Bill 8 (S.B. 8)—a law that is notoriously known for banning abortion after six weeks—in federal courts. But the Court declined to put the law on hold.
The court issued two decisions that day. First, healthcare providers will not be able to sue state judges, clerks, or the state attorney, throwing out the possibility for providers and organizations to sue the people who brought the law to fruition. Abortion providers, however, may proceed with their challenge against the Texas Medical Board and other licensing authorities,
Second, the Supreme Court stated that they would not prevent bounty-hunter lawsuits from being filed, allowing citizens to file lawsuits against abortion providers who are aiding or conducting abortions.
The case, which was led by Whole Woman’s Health and a coalition of abortion providers who were impacted by the decision, was one of the most promising pathways to getting the law blocked.
“That is just hugely disappointing, that a law is openly in violation of Roe v. Wade, is allowed to continue,” Rachel Fey, vice president of policy and strategic partnerships at Power to Decide, told Verywell.
Among those who dissented was Associate Justice Sonia Sotomayor. “My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue,” Sotomayor wrote in the dissent.“The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.”
This challenge to the law will now be sent to a federal appeals court, where a decision may not come for weeks to months.
What This Means For Abortion Clinics and Providers
The ruling prevents providers from performing abortions after six weeks and “they are not necessarily subject to attack [file a lawsuit] in federal courts under the Supreme Court ruling,” Rachel Rebouché, JD, LLM, professor of law at Temple University’s School of Law, told Verywell.
Whole Woman’s Health (WWH), an abortion clinic with four locations in Texas, told Verywell that while they are eager to resume full services for 18 weeks, the ruling prevents them from continuing abortion care after six weeks.
“Sadly, the ruling does not prevent bounty-hunter lawsuits from being provided against trusted healthcare providers by people who believe they might have provided an abortion to someone after fetal heart tones were detected,” a spokesperson at WWH said. “Our legal team is still unpacking the decision, but at this time, we are still in full compliance with S.B. 8 and finding a pathway forward to get this cruel law blocked for good.”
While S.B. 8’s origin lies in Texas, the impact has and will continue to transcend Texas’ borders. Clinics in neighboring states have reported an uptick in calls from Texas patients, resulting in weeks-long wait times for all patients.
For example, an Oklahoma clinic reported that two-thirds of the phone calls it received were from Texas patients since S.B. 8’s inception, putting pressure on out-of-state providers and their health systems to care for Texas patients.
The law also poses a financial risk to Texas healthcare providers. If taken to court after a bounty has been filed, providers would have to pay out an exorbitant amount.
“It’s not the threat of having professional discipline, although that’s a real and serious threat, it’s the threat of any citizen being able to walk into a state court and sue for $10,000,” Rebouché said.
S.B. 8’s Impact
As a result of S.B. 8, patients have had to travel to neighboring states to access abortion. “For over 100 days now, people have been forced to remain pregnant against their will or to travel out of state, sometimes hundreds, if not thousands of miles to get the care they need,” Fey said.
The average one-way driving distance for Texans to reach an abortion clinic increased from 17 miles to 247 miles, which is a 14-fold increase, according to a Guttmacher Institute report.
This burden falls heavily on low-income pregnant people and people of color. “We live in a country in which systemic racism means that people with lower incomes are disproportionately likely to be people of color,” Fey said. “So this is also an incredibly racist policy.”
S.B. 8 isn’t the only law that disadvantages low-income people and communities of color. The Hyde Amendment—which was passed in September 1976—continues to prohibit people from using publicly funded health insurance, like Medicaid, to pay for abortion.
Banning abortion also has health consequences. A study found that an abortion ban would lead to a 21% increase in the number of pregnancy-related deaths for all women and a 33% increase among Black women, underscoring the gender and racial inequities.
“Anything that makes it even harder for people to get abortion care means that you need even more resources to access it," Fey explained. “And so anytime you put restrictions like Texas, it falls hardest on Black and Brown people struggling to make ends meet.”
What’s worse, reproductive health experts and abortion providers fear that the Supreme Court’s ruling will encourage other states to mimic Texas abortion laws.
“The Supreme Court’s ruling was extremely harmful because it encourages other states to do copycat laws and that’s only going to make it harder and harder for people to travel anywhere to get abortion care,” Fey said.
Achieving Reproductive Justice
Despite the Court’s decision, Rebouche and Fey encourage readers to think about their individual role in preserving reproductive justice.
“I think [people] can really get behind the attempts at the federal level and at different state levels to protect abortion rights,” Rebouché said, such as voting.
Earlier this fall, the Women’s Health Protection Act (WHPA) was passed in the House. If the bill becomes law, it would bar states from implementing medically unnecessary restrictions on care, such as mandatory waiting periods, ultrasounds, and hallway width regulations.
“Contact your senators and urge them to pass the WHPA immediately," Fey said. “It would not only block unconstitutional bans like the one in Texas but block bans that make it impossible for people to get care.”
