Texas’ six-week abortion ban will stay in effect indefinitely after Supreme Court decision to allow legal delays

Shefali Luthra

Originally published by The 19th

The Supreme Court declined a request to hasten the appeals process for a lawsuit that could block Texas’ six-week abortion ban. The decision means that the Texas abortion ban, known as Senate Bill 8, will stay in effect indefinitely.

The request came from abortion providers in Texas, who had asked the Supreme Court to step in and send their case directly to the Austin-based U.S. District Court for the Western District of Texas, whose judge had, in a separate case, previously ruled to block the law. The justices rejected that plea in a 6-3 decision that came Thursday afternoon — days before the 49th anniversary of Roe v. Wade — with all three liberals dissenting.

The law has effectively ended in-state access to the procedure before many people know they are pregnant. The state’s abortion clinics had asked for the court to expedited its case so that the law would not stay in its current legal limbo — and because of the inherent time-sensitive nature of pregnancy.

Legal challenges to the abortion ban have faced an uphill battle, in large part because of the law’s novelty. Rather than criminalizing abortion, the law allows private citizens to sue anyone who helps someone end a pregnancy at six weeks or later. That provision, the state of Texas has argued, means that the state cannot be sued, since it doesn’t directly enforce the ban. The state’s lawyers argued that meant the law could not be challenged in federal court.

This past December, a majority of the Supreme Court ruled against that argument, but only narrowly. The court said that state judicial officials — such as court clerks, who would process any civil lawsuits filed against the law’s violators — could not be sued. The Supreme Court suggested that abortion providers could sue Texas’ health licensing boards, who, under the state law, can punish medical professionals if they provide abortions after six weeks.

The court then sent the case back to the United States Court of Appeals for the Fifth Circuit, which had previously ruled in favor of the law and is seen as less friendly to abortion rights than the federal district court in Austin.

On January 7, the Fifth Circuit’s three-judge panel heard arguments in this case, focusing on a question the Supreme Court appeared to have settled: whether health licensing boards can be sued. One judge, Edith Jones, suggested that the court should sit on the case until the Supreme Court rules on its other signature abortion case — Dobbs v. Jackson Women’s Health Organization — which is expected to potentially eliminate the constitutional right to an abortion.

This past Monday night, the Fifth Circuit relegated the SB 8 case to Texas’ State Supreme Court, tasking that court with deciding whether licensing boards can in fact be sued over the law. The move could further delay legal challenges to SB 8 for months.

Meanwhile, abortion providers had asked the U.S. Supreme Court to push the case away from the Fifth Circuit and instead to the Western District. Thursday’s decision means that there is no clear recourse left for abortion providers to push things along faster.

In her dissent, Justice Sonia Sotomayor suggested that the court’s move effectively nullified its own decision from this past December, as well as years of abortion rights protections.

“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies,” she wrote. “I will not stand by silently as a State continues to nullify this constitutional guarantee.”

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