Skip to content Skip to search

Republish This Story

* Please read before republishing *

We’re happy to make this story available to republish for free under an Attribution-NonCommercial-NoDerivatives Creative Commons license as long as you follow our republishing guidelines, which require that you credit The 19th and retain our pixel. See our full guidelines for more information.

To republish, simply copy the HTML at right, which includes our tracking pixel, all paragraph styles and hyperlinks, the author byline and credit to The 19th. Have questions? Please email [email protected].

— The Editors

Loading...

Modal Gallery

/
Sign up for our newsletter

Menu

  • Our Mission
  • Our Team
  • Latest Stories
  • Search
  • Upcoming Events
  • Contact Us
  • Newsletter
  • Donate
  • Work With Us
  • Fellowships
    • From the Collection

      Changing Child Care

      Illustration of a woman feeding a baby a bottle
      • Washington, D.C., offers financial relief to local child care workers

        Orion Rummler · September 20
      • As climate change worsens hurricane season in Louisiana, doulas are ensuring parents can safely feed their babies

        Jessica Kutz · May 5
      • Supreme Court Justice Samuel Alito argued abortion isn’t an economic issue. But is that true?

        Chabeli Carrazana · May 4
    • From the Collection

      Next-Gen GOP

      Illustration of a woman riding an elephant
      • Mayra Flores’ victory set a record for women in Congress. It also reflects the growing visibility of Republican Latinas

        Candice Norwood · June 21
      • A banner year for Republican women

        Amanda Becker · November 11
      • Republican women could double representation in the U.S. House

        Amanda Becker · November 4
    • From the Collection

      On The Rise

      Illustration of three women marching
      • Can Cheri Beasley build a winning coalition in North Carolina?

        Candice Norwood · October 11
      • Los Angeles has never elected a woman mayor. Karen Bass hopes to change that.

        Nadra Nittle · September 8
      • Judge J. Michelle Childs is confirmed to D.C. appeals court

        Candice Norwood · July 20
    • From the Collection

      Pandemic Within a Pandemic

      Illustration of four people marching for Black Lives Matter with coronavirus as the backdrop
      • The 19th Explains: Why the nursing shortage isn’t going away anytime soon

        Mariel Padilla · September 23
      • Some LGBTQ+ people worry that the COVID-19 vaccine will affect HIV medication. It won’t.

        Orion Rummler · November 23
      • Why are more men dying from COVID? It’s a complicated story of nature vs. nurture, researchers say

        Mariel Padilla · September 22
    • From the Collection

      Portraits of a Pandemic

      Illustration of a woman wearing a mask and holding up the coronavirus
      • For family caregivers, COVID is a mental health crisis in the making

        Shefali Luthra · October 8
      • A new database tracks COVID-19’s effects on sex and gender

        Shefali Luthra · September 15
      • Pregnant in a pandemic: The 'perfect storm for a crisis'

        Shefali Luthra · August 25
    • From the Collection

      The 19th Explains

      People walking from many articles to one article where they can get the context they need on an issue.
      • The 19th Explains: What we know about Brittney Griner’s case and what it took to get her home

        Candice Norwood, Katherine Gilyard · December 8
      • The 19th Explains: Why the Respect for Marriage Act doesn’t codify same-sex marriage rights

        Kate Sosin · December 8
      • The 19th Explains: Why baby formula is still hard to find months after the shortage

        Mariel Padilla · December 1
    • From the Collection

      The Electability Myth

      Illustration of three women speaking at podiums
      • Mayra Flores’ victory set a record for women in Congress. It also reflects the growing visibility of Republican Latinas

        Candice Norwood · June 21
      • Stepping in after tragedy: How political wives became widow lawmakers

        Mariel Padilla · May 24
      • Do term limits help women candidates? New York could be a new testing ground

        Barbara Rodriguez · January 11
    • From the Collection

      The Impact of Aging

      A number of older people walking down a path of information.
      • From ballroom dancing to bloodshed, the older AAPI community grapples with gun control

        Nadra Nittle, Mariel Padilla · January 27
      • 'I'm planning on working until the day I die': Older women voters are worried about the future

        Mariel Padilla · June 3
      • Climate change is forcing care workers to act as first responders

        Jessica Kutz · May 31
    • From the Collection

      Voting Rights

      A series of hands reaching for ballots.
      • Election workers believe in our system — and want everyone else to, too

        Barbara Rodriguez, Jennifer Gerson · November 8
      • Voter ID laws stand between transgender people, women and the ballot box

        Barbara Rodriguez · October 14
      • Emily’s List expands focus on diverse candidates and voting rights ahead of midterm elections

        Errin Haines · August 30

    View all collections

  • Explore by Topic

    • 19th Polling
    • Abortion
    • Business & Economy
    • Caregiving
    • Coronavirus
    • Education
    • Election 2020
    • Election 2022
    • Environment & Climate
    • Health
    • Immigration
    • Inside The 19th
    • Justice
    • LGBTQ+
    • Politics
    • Press Release
    • Race
    • Sports
    • Technology

    View All Topics

Home
  • Our Mission
  • Our Team
  • Latest Stories
  • Search
  • Upcoming Events
  • Contact Us
  • Newsletter
  • Donate
  • Work With Us
  • Fellowships

We’re an independent, nonprofit newsroom reporting on gender, politics and policy. Read our story.

The 19th News(letter)

News from reporters who represent you and your communities.

You have been subscribed!

Submitting...

Uh-oh! Something went wrong. Please try again later.

Become a member

The 19th thanks our sponsors. Become one.

The U.S. Supreme Court
(Brendan Smialowski/AFP/Getty Images)

Abortion

Supreme Court rules that abortion providers can sue over Texas law

The decision does not immediately change the availability of abortion in Texas and leaves open an avenue for states to pass future abortion restrictions. 

By

Shefali Luthra, Chabeli Carrazana

Published

2021-12-10 09:12
9:12
December 10, 2021
am

Updated

2021-12-10 17:37:47.000000
America/New_York

Share

  • Twitter
  • Facebook
  • Email

Editor’s note: This article has been updated throughout.

The U.S. Supreme Court will allow a legal challenge to Texas’ six-week abortion law to continue — potentially opening the door for lower courts to once again halt enforcement of the law, but also leaving open an avenue for future abortion restrictions and limiting the ruling’s impact.

The court did not block the law itself but rather sent the case back to a federal court in Austin. That court, U.S. District Court for the Western District of Texas, has already once issued an injunction blocking the law, though that decision was quickly overturned by a U.S. appeals court. 

Before the ruling, many expected that the district court would promptly issue a similar injunction while legal proceedings continue, though it is not clear just how quickly the court will act and whether such an injunction will be ultimately overturned or limited in scope.

The 19th thanks our sponsors. Become one.

And until such an injunction is issued, the vast majority of abortions remain inaccessible in Texas. 

Only one of two major challenges to the law will go forward, a case known as Whole Woman’s Health v. Jackson. That case was brought forth by a group of Texas abortion providers, who are suing the state’s judicial apparatus, which plays a major role in enforcing the law.

Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health, said in a statement to The 19th that the ruling gave the clinic hope for an end to the abortion ban in Texas, which has been in place for 101 days and caused the clinic to turn away pregnant people who had only just learned of their pregnancies. Without an injunction, the clinic cannot resume full abortion services.

Stories by experienced reporters you can trust and relate to.

Delivered directly to your inbox every weekday.

You have been subscribed!

Submitting…

Uh-oh! Something went wrong. Please try again later.

“The legal back and forth has been excruciating for our patients and gut-wrenching for our staff,” she said. “We’ve had to turn hundreds of patients away since this ban took effect, and the Supreme Court’s refusal to block the law means the heartbreak doesn’t end. Our fight against this law is not over.”

Eight members of the court — all but conservative Justice Clarence Thomas — agreed that abortion providers could sue. But they split in half over who, exactly, could be sued, a potentially consequential part of the ruling.  

The court opinion, written by Justice Neil Gorsuch and signed in full by Justices Brett Kavanaugh, Samuel Alito and Amy Coney Barrett — all conservatives — argued that only some state licensing officials could be sued. 

Chief Justice John Roberts, along with liberal Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan, dissented in part, arguing that more abortion providers should have the right to sue a wider swath of state officials, including court clerks.

  • More from The 19th
    A man prays outside Jackson Women's Health Organization.
  • The last abortion clinic in Mississippi is at the center of a Supreme Court case that could end Roe v. Wade
  • Abortion bans could add hundreds of miles of travel to those seeking the procedures, analysis shows
  • Abortion in America: a visual timeline

It’s not immediately clear what impact the court’s limited ruling will have. 

“I think the distinction is a really big deal,” said Steve Vladeck, a professor at the University of Texas School of Law and expert in federal courts. “It’s not clear that relief against these state licensing officials will actually allow providers to resume providing abortions, which is why it was so important to also be able to sue state-court clerks — to prevent these cases from being filed.”

In a blistering dissent that raised constitutional concerns, Sotomayor argued that the court’s decision creates a template for states to invalidate any federal law of their choosing. The narrow decision about who can be sued invites states to craft legislation modeled after Texas’ abortion ban but slightly fine-tuned so that the laws cannot be challenged in court.

“While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general,” she wrote. “By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.” 

The court dismissed the law’s other major challenge, a lawsuit initiated by the federal Department of Justice. That case, United States of America v. Texas, raised more complex constitutional questions about the sovereignty of the federal government. 

Part of the case stemmed from Senate Bill 8’s  distinctive legal structure that had thus far insulated it from legal scrutiny. A six-week ban on abortion is generally seen as inconsistent with Roe v. Wade, the 1973 court case that guaranteed the right to an abortion up until a fetus can live outside the womb. But instead of criminalizing abortions after six weeks of pregnancy, SB 8 deputized private citizens to sue anyone who “aided or abetted” people seeking abortion after that mark. A successful plaintiff would win at least $10,000 in civil court and have legal fees reimbursed. 

This method of enforcement, the state argued, meant that all lawsuits targeting Texas or Texas officials were addressing the wrong defendants. The state solicitor general made that argument both in the case against Whole Woman’s Health and in its arguments against the Justice Department. 

The majority opinion, written by Gorsuch, never mentions Roe v. Wade or weighs in substantively on abortion rights. The 1973 case is mentioned in only two other opinions — one by Chief Justice John Roberts, and another by Justice Sonia Sotomayor — that concur with part of the court’s opinion but dissent from other parts.

For the past three months, no clinic in Texas has performed abortions past six weeks of pregnancy — except for a two-day window when a lower court temporarily blocked the law — and many clinics halted abortion services altogether. 

The number of abortions performed in Texas has plummeted since the six-week ban took effect. About 2,000 people got an abortion in the state in September, less than half the number performed the month prior. Experts had said they anticipated the number to fall further the longer the law stayed in effect. More up-to-date data isn’t yet available.

Simultaneously, clinics in neighboring states, including Oklahoma, New Mexico, Louisiana and Kansas, have reported a tremendous upswell in Texas-based patients coming for abortions. Wait times at those clinics have grown longer. 

Still, the ruling’s impact is likely temporary. On December 1, the nine justices heard a separate abortion rights case out of Mississippi, examining a law that bans abortions after 15 weeks of pregnancy. Unlike the Texas law, that ban has never taken effect. 

The state of Mississippi has argued that, in upholding the law, the court should reverse the Roe v. Wade protection established almost 50 years ago. A decision is not expected until summer, but a majority of the justices appeared open to a ruling upholding Mississippi’s law and possibly overturning Roe v. Wade entirely. 

Depending on the nuances of such a decision, a six-week abortion ban like Texas’ could have a far better chance of surviving legal challenges. If Roe v. Wade is entirely overturned, governments in more than 20 states — including Texas — have indicated they intend to ban abortion altogether.

And Friday’s ruling paints a clear picture of a court divided over abortion rights and ready to substantially undermine Roe v. Wade’s protections, argued Melissa Murray, a professor at New York University and expert in reproductive law.

“​​The biggest thing we learned from this opinion is that the court is totally fractured on the question of abortion — with the hardcore conservative justices on the same page, the chief in the middle, and the three liberal justices trying to hold a line that is going away,” Murray said.

On Friday evening, President Joe Biden said he was “very concerned” that the court did not block SB8.

“While it is encouraging that the Court ruled that part of the providers’ lawsuit may continue, this ruling reinforces that there is so much more work to be done—in Texas, in Mississippi, and in many states around the country where women’s rights are currently under attack,” he said in a statement.

Biden joined calls to and from within Congress to pass the Women’s Health Protection Act, one of the pieces of legislation that would eliminate further barriers to accessing an abortion. Those include mandates that require pregnant people to wait a day or more after an initial appointment and ultrasound before they can access care, or laws that require doctors to provide counseling that is intended to discourage the procedure. 

Sen. Patty Murray, a Washington Democrat who has cosponsored the Women’s Health Protection Act, said the legislation is particularly important because of the message the court’s ruling sends about the future of Roe v. Wade. Still, without bipartisan support in an evenly split Congress, the bill is unlikely to advance. 

“It means that despite the fact that this law is in clear violation of Roe and 50 years of precedent, despite the fact that it deprives patients in Texas of their constitutional right to abortion — it is still in effect,” Murray said in a statement. “A person’s ability to get constitutionally protected health care should not be turned off and on like a faucet.”

Share

  • Twitter
  • Facebook
  • Email

Help sustain what we started

Your monthly investment is critical to our sustainability as a nonprofit newsroom.

Donate Today

Become a member

Up Next

A newborn baby

Abortion

What are safe haven laws, and why did they come up in a Supreme Court case on abortion?

Justice Amy Coney Barrett asked about safe haven laws and their ability to relieve the burden of parenting.

Read the Story

The 19th
The 19th is a 501(c)(3) tax-exempt organization. Our stories are free to republish in accordance with these guidelines.

  • Donate
  • Newsletter
  • Events
  • Search
  • Jobs
  • Fellowships
  • Contact Us
  • About Us
  • Community Guidelines
  • Membership
  • Membership FAQ
  • Major Gifts
  • Sponsorship
  • Privacy
  • Twitter
  • Facebook
  • Instagram