Supreme Court Allows Controversial Texas Abortion Law to Take Effect

The U.S. Supreme Court recently declined to block enforcement of a Texas law that prohibits abortions after six weeks of pregnancy. The Court denied the application for injunctive relief in Whole Woman’s Health v. Jackson, 594 U. S. ____ (2021), by a vote of 5-4, with Chief Justice John Roberts siding with the liberal justices.

Facts of the Case

The Texas law at issue, S.B. 8 (the “Act), provides that “a physician may not knowingly perform or induce an abortion . . . if the physician detect[s] a fetal heartbeat,” a term that the Act defines to include even embryonic cardiac activity that appears at approximately six weeks in pregnancy. The Act also makes it unlawful for any person to “aid[] or abet[]” an abortion prohibited by the law, including by helping to pay for a prohibited abortion, or even merely to intend to provide or assist with a prohibited abortion.

Unlike other abortion laws, S.B. 8 bars executive-branch officials— such as local prosecutors or the health department—from enforcing it directly. Instead, S.B. 8 may be enforced only by state courts via civil-enforcement actions that “[a]ny person” can bring against anyone alleged to have violated the ban by performing or assisting with a prohibited abortion, or by intending to do so. When a “violation” of the ban occurs, S.B. 8 requires state courts to issue an injunction to prevent further prohibited abortions from being performed, aided, or abetted. In addition, courts are required to award the person who initiated the enforcement action a minimum of $10,000 per abortion, payable by the person who violated the Act.

Various abortion clinics and abortion doctors, as well as other organizations that advocate for abortions, filed a lawsuit challenging the Act and seeking injunctive relief. The defendants included various state officials, including the Executive Directors of the Texas Medical Board (TMB), Texas Board of Nursing, and Texas Board of Pharmacy, as well as the Commissioner of HHSC, and the Attorney General. The plaintiffs also sued Mark Lee Dickson, an individual who they allege has threatened to file private enforcement actions against them utilizing SB 8’s cause of action. Among other arguments, the plaintiffs argued that the Act violates their patients’ constitutional right to terminate a pregnancy before viability.

The district court denied the defendants’ motion to dismiss the case. The defendants appealed to Fifth Circuit Court of Appeals, which granted their request to stay the remaining district-court proceedings. The court of appeals also denied the plaintiffs’ request to expedite the defendants’ appeal, prompting the plaintiffs to seek emergency relief in the U.S. Supreme Court.

Supreme Court’s Decision

A divided Supreme Court rejected the request for injunctive relief, thereby allowing the Texas abortion law to take effect. As the majority explained, to prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest.

While the majority acknowledged that the applicants “have raised serious questions regarding the constitutionality of the Texas law at issue,” it ultimately concluded that “their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.” In support, the majority noted that federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. “And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention,” the Court wrote.

“In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application,” the majority wrote. “In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

Dissent

Chief Justice John Roberts authored a dissent, which was joined by Justices Stephen Breyer and Elena Kagan. The Chief Justice emphasized that “the statutory scheme before the Court is not only unusual, but unprecedented.” He added: “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.”

Given the novelty of the case and the importance of the constitutional issue raised, Roberts argued that he would preclude enforcement of S.B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims.

Justice Sonia Sotomayor authored the Court’s harshest dissent, which was joined by Justices Stephen Breyer and Elena Kagan. “The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” she wrote. “Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.”