Texas Supreme Court Decision Means Abortion Ban Challenge Will Be Thrown Out

Today, the Texas Supreme Court ruled that Whole Woman’s Health v. Jackson – once the most promising lawsuit against Texas’ ban on abortion after six weeks of pregnancy (S.B. 8) – cannot proceed against the Texas Medical Board and other similar state licensing officials, the only remaining defendants in that challenge. This ruling comes after the U.S. Supreme Court dismissed most of the case in December 2021, allowing only a small part of the case to move forward in lower court. Today’s ruling will result in dismissal of the remaining portion of the challenge to the 6-week ban, meaning S.B. 8 will likely remain in effect for the foreseeable future.

The case was filed in July 2021 by abortion providers, funds and other advocates in Texas seeking to block S.B. 8. Since then, the U.S. Supreme Court refused to block the ban numerous times and finally dismissed most of the case three months ago, ruling that federal courts are powerless to block this kind of citizen-enforced law despite its blatant attack on established constitutional rights. The only part of the case that was allowed to move forward was against the Texas Medical Board and other state licensing officials, seeking to prevent them from taking disciplinary actions against doctors and other health professionals who provided abortion care in violation of S.B. 8. Today, the Texas Supreme Court ruled that these officials do not have the authority to revoke licenses for violations of S.B. 8, leaving no other defendants against which the case can proceed. The ban remains in place, including the bounty-hunting scheme, which puts a $10,000 bounty on the head of anyone who provides an abortion after six weeks of pregnancy or helps someone obtain an abortion past that point.

Clinics in neighboring states have reported huge upticks in Texas patients since S.B. 8 took effect, resulting in weeks-long wait times. At Hope Medical Group—an abortion clinic in Louisiana—64% of their current patients are Texas residents. Planned Parenthood released data in February showing that, in the first four months after S.B. 8 took effect, more than half of the patients at their Oklahoma health centers were from Texas, compared to less than 10% in the prior year. Many other Texans have been unable to travel out of state and have been forced to carry their pregnancies to term or attempt to manage an abortion on their own. The impact has fallen hardest on marginalized communities, including people living on low incomes, and Black and brown communities.

Already this year, ten states have introduced bills copying S.B. 8. In Oklahoma, the legislature is expected to pass a copycat bill by the end of the month, which has an immediate effective date. That means by the end of March, abortion may be banned after 6 weeks in Oklahoma—a state where many Texans have been traveling to find abortion services. Other states that have introduced copycat bills include: Alabama, Arizona,  Florida, Idaho, Maryland, Minnesota, Missouri, Ohio, and Wisconsin.

The plaintiffs in Whole Woman’s Health v. Jackson include Whole Woman’s Health; Whole Woman’s Health Alliance; eleven Planned Parenthood health centers throughout the state; Southwestern Women’s Surgical Center; Austin Women’s Health Center; Alamo Women’s Reproductive Services; Houston Women’s Reproductive Services; Dr. Allison Gilbert and Dr. Bhavik Kumar, who provide abortion services; Reverend Erika Forbes and Reverend Daniel Kanter, who provide emotional and spiritual counseling and support to patients considering abortion; the Afiya Center; Frontera Fund; Fund Texas Choice (FTC); Jane’s Due Process; Lilith Fund; the TEA Fund; and Marva Sadler, Senior Director of Clinical Services at Whole Woman’s Health.

Plaintiffs are represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, the Lawyering Project, the American Civil Liberties Union, the ACLU of Texas, Morrison & Foerster LLP, and Austin attorney Christen Mason Hebert.

A timeline of Whole Woman’s Health v. Jackson available here.

Quotes from plaintiffs and litigators: 

Statement from Amy Hagstrom Miller, President and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance:

“We have been fighting this ban for six long months, but the courts have failed us. All the while, our Texas clinics have been open – and that is a testament to the commitment and resilience of our staff and doctors. This ban does not change the need for abortion in Texas, it just blocks people from accessing the care they need. The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans. Where will Texans go then? The more states that pass these bans, the harder it will be for anyone in this region to get abortion care. Texans deserve better.”

Statement from Nancy Northup, president and CEO of the Center for Reproductive Rights:

“We are in a moment of crisis not only for reproductive rights but for our justice system and the rule of law. With this ruling, the sliver of this case that we were left with is gone. An unconstitutional ban on abortion after six weeks continues unchecked in the state of Texas. The courts have allowed Texas to nullify a constitutional right. We will continue to do everything in our power to right this wrong.”

Statement from Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America:

“Today is a devastating day for people in Texas and anyone who believes in the right to control their own body, life, and future. Over and over again the courts have failed Texans, who have been stripped of their fundamental right to abortion for more than six months now. Because of the U.S. Supreme Court’s repeated refusal to intervene for more than half a year, Texans are living in a state of sustained chaos, crisis, and confusion – and there is no end in sight. Tragically, this attack on reproductive freedom now continues uninterrupted in Texas and across the country. Politicians have the green light to move forward with their own unconstitutional abortion bans, decimating access to abortion state by state, region by region. We are already seeing these attacks in Idaho, Florida, Arizona, Kentucky, Missouri, Oklahoma, West Virginia, and more states. Our patients and providers deserve so much better. Everyone — no matter where you live or how much money you make — deserves access to essential health care, free of barriers or political roadblocks.”

Statement from Julia Kaye, staff attorney, ACLU Reproductive Freedom Project:

“The courts have once again failed Texans. This is another devastating injustice, and people will continue to be denied the basic human dignity of being able to control their own body. Some have been able to overcome this cruel law through the extraordinary support of abortion funds and the reproductive rights and justice movement to get abortion care very early in Texas or travel out of state. But too many others have been denied abortion care altogether, and the brunt of this horrific law has fallen on the most marginalized people, including people of color and people with the fewest resources. The public cannot stand by while extremist politicians and cowardly courts strip away our civil rights. We won’t stop fighting and we will do everything we can to stem the suffering that has resulted from this unprecedented crisis.”

Statement from Blair Wallace, policy & advocacy strategist, ACLU of Texas:

 “By dismissing our case and allowing overzealous politicians to win in their gambit to override the U.S. Constitution, the Texas Supreme Court ignored what is happening in its backyard. Every day, Texans, especially Black and Latinx Texans, are bearing the physical and mental health risks of being forced to carry a pregnancy to term against their will. And every day, in Texas, the Constitution’s promise to protect us from these harms has been made meaningless. But we will never stop fighting in the streets and at the legislature for the justice and compassion so sorely lacking in SB 8 and in the shameful judicial decisions upholding it.

Statement from Rupali Sharma, Senior Counsel and Project Director at the Lawyering Project:

“For over half a year, S.B. 8 has forced Texans who need an abortion to uproot their lives amid a pandemic and travel out of state for care, significantly delaying their abortions.  And that’s the best-case scenario.  Despite the extraordinary efforts of abortion funds and practical support organizations, all too many Texans ultimately lack the resources or mobility to access abortion at great distances from home and thus face the devastating consequences of unwanted pregnancy. Today’s ruling means that this cruelty will continue at enormous costs to Texans and their families.”