What's at Stake
The American Civil Liberties Union, the ACLU of Texas, and coalition partners filed a federal lawsuit on behalf of abortion providers and funds on July 13, 2021, challenging S.B. 8, a Texas law allowing private citizens to enforce a ban on abortion as early as six weeks in pregnancy—before many know they are pregnant. The ACLU’s challenge made its way to the U.S. Supreme Court three times in as many months. After hearing oral arguments in the case, the Court issued a decision on December 10, 2021, that ended the most promising pathways to blocking the ban. The Supreme Court’s decision makes it more difficult to obtain adequate relief from the courts and gives states the green light to ban abortion using bounty-hunting schemes. Texas’ abortion ban will remain in effect until relief can be secured from a court.
In the Supreme Court’s 5-4 majority opinion issued in December, the Court ruled that the most significant part of the ACLU’s case must be dismissed, holding that the plaintiffs could not bring suit against the classes of state judges and clerks or the state attorney general. The Court ruled that a narrow portion of the case may proceed against the Texas Medical Board and other licensing authorities, but this will not provide widespread relief because it would not prevent bounty-hunter lawsuits from being filed. With this ruling, the case was sent back to the Fifth Circuit Court of Appeals.
The only task left for the Fifth Circuit to do was to send the case back down to the district court so the case could proceed against the state licensing officials. Instead of immediately doing so, the Fifth Circuit heard oral argument on January 7, 2022, to determine whether the court should grant a motion made by Texas asking the Fifth Circuit to request that the Supreme Court of Texas answer the question of whether the licensing official defendants have any enforcement authority under state law, and can therefore be sued. On January 17, the Fifth Circuit granted Texas’ request, which the Supreme Court of Texas accepted on January 21. Due to the unnecessary delay in returning the case to the district court, we filed a petition for a writ of mandamus with the U.S. Supreme Court on January 3, requesting that the Supreme Court order the Fifth Circuit to send the case to the district court. On January 20, the Supreme Court refused our request. Until then, as Justice Sotomayor said in her dissent to the denial of our mandamus petition, “the District Court will remain powerless to address S. B. 8’s unconstitutional chill on abortion care, likely for months to come.”
The case was first brought to the nation’s highest court on an emergency appeal in August after the Fifth Circuit cut off the only avenue to block the law from going into effect. On September 1, 2021, the Supreme Court denied our request to block the law, allowing S.B. 8 to take effect on the same day. In October, the Supreme Court denied a second request to block the law while the Court heard oral arguments in the case.
This unprecedented law authorizes private individuals to file civil lawsuits to “enforce” the unconstitutional abortion ban. This scheme allows anyone — a relative, an abusive partner, or even a stranger — to sue the health care provider and seek a court order that would block the patient’s abortion and prevent medical professionals from providing any abortion after approximately six weeks in pregnancy. The law also incentivizes bounty hunting by offering money “damages” of at least $10,000 to anyone who successfully sues an abortion provider or anyone who helps someone get an abortion after approximately six weeks in pregnancy.
Since the law went into effect, most Texans have been unable to access abortion in the state. The impact has fallen harshest on marginalized communities, including people with low incomes, young people, and Black, Brown, and immigrant communities. Clinics in neighboring states reported huge upticks in Texas patients, resulting in weeks-long wait times for all patients due to the influx in need for time-sensitive care created by the Texas abortion ban. Unfortunately, the barriers to getting care out of state are often insurmountable and countless Texans have been forced to carry pregnancies against their will.
In a separate challenge filed by the U.S. Department of Justice and heard by the Supreme Court, the Court denied the DOJ’s request to block the law, leaving in place the Fifth Circuit Court of Appeals’ denial of emergency relief that could have restored abortion access. Separately, several state court challenges seeking to declare S.B. 8 unconstitutional remain ongoing. On December 9, 2021, a Texas state court judge held S.B. 8’s private enforcement scheme violates the state constitution in one of the state cases brought by Texas Planned Parenthood affiliates and others. That decision has been appealed. In October, the Center for Reproductive Rights filed a lawsuit in federal court, Braid v. Stilley, on behalf of Dr. Alan Braid, a Texas doctor who provided abortion services in violation of the ban.
The ACLU’s case was initially filed in the U.S. District Court for the Western District of Texas on behalf of a broad coalition of Texas abortion providers, their patients, clinic staff, abortion funds, practical support networks, and clergy. Plaintiffs are represented by the American Civil Liberties Union, ACLU of Texas, Planned Parenthood Federation of America, the Center for Reproductive Rights, The Lawyering Project, pro-bono counsel Morrison & Foerster, and local counsel Christie Hebert of Johns & Hebert PLLC.