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Activists react to high court move to leave Texas abortion ban in place for now

Abortion critics pleased that state ban remains as litigation proceeds

The U.S. Supreme Court announced decisions on Friday involving a pivotal abortion case.
The U.S. Supreme Court announced decisions on Friday involving a pivotal abortion case. (ill Clark/CQ Roll Call)

More than three months after Texas’ near-total ban on abortion was implemented, abortion opponents cheered the Supreme Court’s decision Friday to allow the law to remain in effect, although the court also said providers have standing to challenge the controversial statute.

The high court is allowing abortion critics for now to achieve their goal of blocking abortion, which the court previously declared a constitutional right in cases beginning with Roe v. Wade in 1973.

“This law is saving countless lives each day it stays in effect. Our fight to protect all life, no matter how small, is only just beginning,” tweeted Sen. Steve Daines, R-Mont., founder of the Senate Pro-Life Caucus.

The Supreme Court issued two decisions Friday, allowing abortion providers to sue but not permitting the Justice Department to go forward with its own challenge to the law. The case now heads back to the lower courts.

The Texas law, known as SB 8, prohibits abortions around six weeks of pregnancy, with no exceptions for rape or incest.

The law essentially flouts the right to abortion established under Roe v. Wade, due to an unusual enforcement mechanism. Private individuals can sue anyone who aids in an abortion after a fetal heartbeat can be detected and potentially win a minimum reward of $10,000.

Meanwhile, the Biden administration acted Friday to support emergency birth control in Texas, in light of the law’s impact. The Department of Health and Human Services’ Office of Population Affairs announced a $750,000 supplementary award of Title X family planning funding to Every Body Texas to expand access to emergency contraception, also known as Plan B, and other family planning services through March 31, 2022. The funding would not be used for abortion.

Some liberal advocates had a mixed reaction to the Supreme Court’s actions, expressing relief that the decision leaves a narrow pathway for abortion providers to challenge the law, but also dismay that the justices kept the law in effect.

“Finally, we have hope for an end to this horrific abortion ban. The legal back-and-forth has been excruciating for our patients and gut-wrenching for our staff,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, the lead plaintiff against the law. “We’ve had to turn hundreds of patients away since this ban took effect, and the Supreme Court’s refusal to block the law means the heartbreak doesn’t end.“

Jamila Perritt, president and CEO of Physicians for Reproductive Health, said she was “deeply disappointed” the law is still preventing women from receiving abortions in Texas.

“This situation is unconscionable and we implore the lower courts to act immediately to block this callous law,” she said. “We urgently need Congress and President [Joe] Biden to take action to protect access to abortion care.”

Senate Health, Education, Labor and Pensions Chairwoman Patty Murray, D-Wash., called Friday’s ruling “some small measure of hope.”

“A person’s ability to get constitutionally protected health care should not be turned off and on like a faucet,” she said in a statement. “We need federal protections.”

Murray and other Democrats pointed to a House-passed abortion rights bill that Senate Majority Leader Charles E. Schumer D-N.Y., has promised to bring to the floor. The bill would protect abortion access and the ability for health providers to perform them.

Other states

Since the Texas ban took effect in September, abortion providers and their advocates have reported an influx of activity in neighboring states.

Hope Medical Group for Women in Louisiana said it is fully booked for appointments through mid-January due to additional patients from Texas.

Similarly, Jackson Women’s Health Organization in Mississippi said it has increased the number of days it provides abortions from three to five days a week to accommodate more patients.

The Mississippi clinic faced its own battle as the Supreme Court heard oral arguments last week over a 15-week abortion ban the state recently enacted, which is being challenged in Dobbs v. Jackson Women’s Health Organization.

Marjorie Dannenfelser, president of the Susan B. Anthony List, said an eventual decision in the Mississippi case remains a top priority, and celebrated that the justices kept the Texas law in effect.

“We have great hope that the Court will return the issue back to the people to decide through their elected representatives, letting democracy and consensus prevail,” she said.

As some states prepare to start their legislative sessions in January, legislators on both sides of the issue are already expecting a surge in abortion-related activity.

Legislators from two additional states, Alabama and Arkansas, announced this week that they intend to pursue so-called copycat bills to the Texas model. Ohio and Florida have already prefiled bills following the model. A total of 14 states so far have expressed interest.

Justice Sonia Sotomayor referenced the rise of bills in her dissent in the ruling allowing the law to remain in place while litigation continues.

“This is no hypothetical. New permutations of S. B. 8 are coming. In the months since this Court failed to enjoin the law, legislators in several States have discussed or introduced legislation that replicates its scheme to target locally disfavored rights,” wrote Sotomayor. “I fear the Court, and the country, will come to regret that choice.”

States governed by liberal leaders are also pushing for action, with the hope of broadening abortion access.

The California Future of Abortion Council, spearheaded by Democratic Gov. Gavin Newsom, also issued 45 recommendations for expanding abortion access, including ways to subsidize access for women traveling from other states with limited access.

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