Abortion providers again ask Supreme Court to intervene in Texas case

Abortion providers on Thursday turned to the Supreme Court to ask the justices again to intervene in a legal challenge over the new Texas abortion law, even as the case proceeds through a lower court.

The request was somewhat unusual, coming just over three weeks after the justices voted 5-4 to deny the groups’ emergency request to block the law, and prior to a lower court definitively ruling on a core question at hand.

But the challengers said the justices’ fast-track intervention was “urgently needed,” with abortion access in Texas having been sharply curtailed since the restrictive statute took effect on Sept. 1.

“For 23 days, we’ve been forced to deny essential abortion care for the vast majority of patients who come to us. Most of those we’ve turned away told us they would not be able to make it out of Texas for care,” said Amy Hagstrom Miller, who heads Whole Woman’s Health, one of the groups involved in the legal challenge. “This chaos must come to an end, and that is why we are going back to the Supreme Court today.”

The Texas law, known as S.B. 8, prohibits abortions after fetal cardiac activity is detected, typically around six weeks of pregnancy. It authorizes private citizens to sue those who perform or aid the procedure in violation of the law, providing for at least $10,000 in each successful suit.

Before the law took effect, abortion rights advocates and providers sued to block Texas state judges from enforcing the law and court clerks from accepting lawsuits alleging violations of S.B. 8. The defendants, who are state officials, in turn claim the lawsuit against them is improper, and have asked that the case be dismissed.

That case is pending before the U.S. Court of Appeals for the 5th Circuit, which despite expediting the proceedings, will not hear the matter until December at the earliest.

Although the 5th Circuit has not definitively ruled on the question, the group of abortion providers say a mid-September ruling by the appeals court made clear it will ultimately rule against them — “the writing is on the wall,” the group said in their Thursday brief to the Supreme Court.

Those dynamics prompted the abortion providers’ request on Thursday that the justices weigh in even before the intermediate appeals court conclusively does so on the following question: “Whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

Abortion rights advocates argue Texas’s six-week ban is a clear-cut violation of the constitutional right to abortion first recognized in the landmark 1973 decision in Roe v. Wade, which prohibits states from banning abortion before a fetus is viable, typically around 24 weeks of pregnancy.

Just before midnight on Sept. 1 — the first day S.B. 8 took effect — the Supreme Court denied an emergency request from the abortion providers to block the law. The ruling was 5-4, with Chief Justice John Roberts joining the court’s three more liberal justices in dissent.

The majority, citing procedural complexities, said abortion providers had failed to make a persuasive case for the court to step in but added that the challengers had raised “serious questions” about the law’s constitutionality.

Some court watchers said Thursday’s filing could set in motion a move by the court to take up arguments over the Texas abortion ban alongside a dispute the justices will hear Dec. 1 concerning a challenge to Mississippi’s 15-week abortion ban.