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What happens next in abortion providers' fight to challenge the Texas law

Pro-choice and anti-abortion demonstrators rally outside the U.S. Supreme Court last month in Washington, DC.
Drew Angerer
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Pro-choice and anti-abortion demonstrators rally outside the U.S. Supreme Court last month in Washington, DC.

Updated December 10, 2021 at 4:32 PM ET

Saying the Supreme Court "failed us today," the abortion provider at the heart of the legal challenge to S.B. 8 — the controversial Texas law that allows private citizens to sue anybody who helps to provide an abortion past six weeks of pregnancy — vowed to continue fighting the law, which remains in effect.

But the provider and its legal allies said Friday's ruling, a narrow and technical decision led by the court's most conservative members, left them fewer options to do so.

"For 101 days, our patients have been left with two choices: carry a pregnancy they didn't want to begin with or jump through hoops to leave the state. It's heartbreaking and it should have never happened to begin with," wrote Whole Woman's Health, a network of abortion providers that operates four clinics in Texas.

"We'd hoped for a statewide injunction, but no clear path to it. Rest assured, we will NOT stop fighting," the provider wrote.

S.B. 8 remains in effect while the lawsuit, called Whole Woman's Health v. Jackson, is allowed to proceed in federal court. At least two other major challenges to the law exist.

The legal future is uncertain enough that abortion providers said they would likely continue to decline services to patients who are already past six weeks of pregnancy.

"This does not feel like a green light for us to reopen," said Amy Hagstrom Miller, president and CEO of Whole Woman's Health. "The risk for clinic staff and physicians remain great."

Anti-abortion groups in the state hailed the decision.

"While we continue to fight for this policy in the lower courts, Texas Right to Life celebrates that the Texas Heartbeat Act will continue saving between 75-100 preborn children from abortion per day," said a spokesperson for Texas Right To Life, an anti-abortion group involved in litigation over S.B. 8, using another name for the law.

Ruling removes some defendants from the case and leaves the law in place

The complicated ruling, issued Friday morning by a vote of 8-1, allows the challenge brought by Whole Woman's Health to proceed in a lower court. In that sense, it is a victory for the provider.

But by another vote of 5-4, the justices ruled that Texas judges and court clerks — who had been named as defendants — must be removed from the lawsuit.

As a result, any future injunctions in the case won't block the law, attorneys said, because the only defendants who remain are officials who handle medical and pharmaceutical licenses. Any court orders against them would only affect their licensing powers, said Marc Hearron, senior counsel for the Center for Reproductive Rights, a legal advocacy group whose attorneys are leading the litigation.

"An injunction against those officials would not enjoin the filing of lawsuits by private parties, who would seek the $10,000 or more bounty against either a clinic or a physician or another person who provides or assists an abortion in violation of S.B. 8," said Hearron, who argued the case before the Supreme Court in November.

Abortion-rights advocates – joined in their effort by the U.S. Department of Justice – had hoped the court would issue an order pausing enforcement of the law.

The Supreme Court declined to do so, meaning the law remains in effect, as it has been since Sept. 1.

"The legal whiplash of the last 100 days has had an excruciating impact on our staff and our patients. Our staff are heartbroken, scared and discouraged," said Hagstrom Miller.

The issue of private citizens suing abortion providers remains in play

At the heart of S.B. 8 is a novel way of outlawing abortion after six weeks of pregnancy: Rather than leave enforcement to government officials, which is prohibited under Roe v. Wade, the Texas law allows private citizens to sue anybody who assists with an abortion. If successful, the person bringing the suit can win a bounty of at least $10,000, which must be paid by the defendant.

In a partial dissent, Chief Justice John Roberts wrote: "The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake."

"It's stunning that the Supreme Court has essentially said that federal courts cannot stop this bounty-hunter scheme enacted to blatantly deny Texans their constitutional right to abortion. The Court has abandoned its duty to ensure that states do not defy its decisions," said Nancy Northup, president and CEO of the Center for Reproductive Rights.

Friday's ruling did not address the constitutionality of the law. That legal battle now returns to federal court in Austin.

That judge, U.S. District Court Judge Robert Pitman, had previously issued an injunction — "this Court will not sanction one more day of this offensive deprivation of such an important right," he wrote in his order — but that injunction was overturned by an appeals court.

But even if Pitman rules in favor of Whole Woman's Health, S.B. 8 explicitly tells Texas state court judges that they are not bound by a federal district court decision, said Julie Murray, a lawyer with Planned Parenthood.

"We certainly will continue to pursue our claims against the state licensing officials that S.B. 8 is unconstitutional, but even with a district court decision so holding, the threat of bounty-hunting suits will continue," Murray said.

The case may eventually return to the Supreme Court.

Other challenges to the Texas law and Roe v. Wade

In addition, S.B. 8 faces other legal challenges, including another case led by the Center for Reproductive Rights called Braid v. Stilley.

The case centers on Dr. Alan Braid, a physician who provides abortions in San Antonio. Six days after the law went into effect, Braid provided an abortion to a woman whose first-trimester pregnancy was already beyond the six-week limit allowed by the law.

After he wrote about the abortion in an op-ed for The Washington Post, Braid was sued under S.B. 8 by three people: Felipe Gomez, a resident of Chicago, Oscar Stilley, a resident of Cedarville, Ark., and Wolfgang Hirczy de Mino, a resident of Bellaire, Texas.

They are the only known lawsuits filed under the Texas law, according to attorneys representing Braid.

Braid's lawsuit effectively asks a federal court in Illinois to roll all three claims against him together and rule them invalid by finding S.B. 8 to be unconstitutional. That suit was filed in October.

In addition to the federal lawsuits, Planned Parenthood has challenged the law in state court.

In that case, a state district court judge in San Antonio ruled Thursday that the law's enforcement mechanism is unconstitutional. In a 48-page opinion, Judge David Peeples excoriated S.B. 8 for granting "21 million Texans the power to bring cases without any guidance, supervision, or screening."

But he did not issue an injunction, leaving the law in place. The ruling has already been appealed.

Looming over the various challenges to S.B. 8 is Dobbs v. Jackson Women's Health Organization.

That suit, brought by the only abortion clinic in Mississippi, challenges a new Mississippi law that seeks to ban most abortions after 15 weeks of pregnancy, much earlier than what has long been allowed under Roe v. Wade.

The Supreme Court heard oral arguments on that case earlier this month. Its decision — which could weaken Roe or overturn it altogether — is expected this summer.

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