In a narrow ruling that leads to a limited way forward in the fight to stop Texas SB 8, the U.S. Supreme Court ruled against one lawsuit, parsed the other and denied the Biden administration’s request to put Texas SB 8 law on hold.
The Supreme Court heard two separate arguments in early November around Texas SB 8, which allows anyone to sue a provider or person who “aids and abets” a Texas abortion patient to receive an abortion in the state after six weeks of gestation. Reproductive rights officials who held a press conference after the high court’s decision on Friday spoke of the “chilling effect” this law has had on providers inside the state and the stress it has put on providers in other states, including New Mexico, to provide abortion care for patients coming from Texas in addition to the patients in their own states. Around 55,000 people in Texas receive an abortion in that state annually prior to the Texas law going into effect in early September. In New Mexico, around 3,000 people receive an abortion each year, on average.
By refusing to enjoin Texas SB 8 while providers continue in their lawsuit in state federal court means that abortion clinics in New Mexico and other states will see no immediate relief from the strain already placed on them. Marc Hearron, senior counsel for the Center for Reproductive Rights, said the law’s impact “is affecting Texas patients profoundly but also patients in other states now have to wait weeks for an abortion appointment in their own state.”
“It really is a terrible state of affairs,” Hearron said.
Whitney Phillips, vice president of brand experience for Planned Parenthood of the Rocky Mountains, said the Planned Parenthood clinic in Albuquerque is at about a 12 to 14 day wait for appointments right now due to the overflow.
Julie Murray, an attorney with Planned Parenthood, said during the press conference that “people need to understand the amount of need.”
“Even if Planned Parenthood affiliates and surrounding states massively increase their capacity to increase abortion to those who need it, it is still, given how big Texas is and how large the population is, it’s not possible the surrounding states around Texas could absorb that care,” she said.
Jack Teter, PPRM’s regional director of governmental affairs, said through email to NM Political Report that “the inaction of the court today is as unjust as it is unsurprising.”
“Our doors stay open–for everyone, including the Texans who drive 1,000 miles through the night in search of a safe place to access abortion. Winter storms and road closures will only exacerbate inhumane political bans on health care. This is unconscionable,” Teter wrote.
Supreme Court Justice Sonia Sotomayor was the sole justice to dissent on the refusal to place an injunction on Texas SB 8.
The court ruled narrowly in favor of one portion of the lawsuit brought by Whole Women’s Health Organization, allowing the provider the ability to go forward in the lower courts against Texas medical licensing officials. But the majority of the court struck down the provider’s ability to also sue state judges, clerks and the Texas Attorney General over enforcement of the law.
Part of why reproductive rights experts have called the law “insidious” is because the state itself does not enforce the law, private citizens do. That leaves providers and reproductive rights organizations with no clear entity to sue on the constitutionality of the law.
According to the SCOTUSblog, which provides independent analysis of the court’s rulings, the court’s decision on Friday allowing Whole Women’s Health Organization the ability to seek an injunction against medical board licensing officials is “not clear how much relief that could provide from a law that intentionally relies on private citizens for enforcement.”
Justice Clarence Thomas wrote a partially dissenting opinion, saying he believed the provider’s entire suit should have been struck down.
Chief Justice John Roberts also wrote a partial dissent. Roberts was joined by the liberal wing of the court—Sotomayor and Justices Elena Kagan and Stephen Breyer.
Roberts disagreed with the majority opinion that the attorney general and county clerks in Texas could not be sued in the Whole Women’s Health Organization’s suit.
There was considerable discussion during oral arguments in early November on these two lawsuits about the potential for the Texas law, if allowed to stand, having a broader implication for all constitutional rights because it appears to evade federal judicial review.
Roberts wrote that “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.”
Sotomayor also wrote a separate dissenting opinion, with Kagan and Breyer concurring, that she disagreed that the provider could not seek relief against other Texas officials, including state court judges, clerks and the Texas attorney general. By not allowing the provider to sue additional officials, “the court thus betrays not only the citizens of Texas but also our constitutional system of government,” she wrote.
The court agreed unanimously in striking down the Biden administration’s efforts to stop the law.