Abortion Providers’ Brief Filed in TX Abortion Ban Case Before SCOTUS

October 27, 2021 – Today, the Center for Reproductive Rights filed its opening brief in advance of Monday’s arguments when the Supreme Court will hear both Whole Woman’s Health v. Jackson and United States v. Texas. These two cases challenge Texas’s ban on abortion after six weeks of pregnancy, known as S.B. 8. The ban has been in effect for nearly two months, during which time most Texans have been unable to access abortion. 

The Supreme Court has repeatedly declined to block the ban. In the cases being heard on Monday, the Court will once again decide whether to block the ban. The Court will also rule on attempts to dismiss the cases, deciding whether federal courts even have the authority to block the law, and whether the DOJ has the power to challenge it.

You can read the Center’s full brief here.

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

“States cannot nullify rights guaranteed in the U.S. Constitution. Today the issue is abortion rights, tomorrow it could be free speech, the right to marry, the right to vote, or any other constitutional right. Every person in the U.S. has a stake in how the Court decides this case. Our brief filed today makes clear that doctors, clinic staff, clergy and advocates can sue in federal court to block the vigilante scheme that Texas has created.”

Timeline of Whole Woman’s Health v. Jackson:  

• May 19: Texas Gov. Greg Abbott signed Senate Bill 8 into law.  
• July 13: Plaintiffs filed the case in federal district court.  
• August 4-5: The defendants filed motions to dismiss, asking the district court to end the case.
• August 12: The federal district court judge scheduled a preliminary injunction hearing for August 30 to determine whether to block the law before it would take effect on September 1. 
• August 25: The federal district court judge denied the defendants’ motions to dismiss the case. Defendants immediately filed a notice of appeal with the Fifth Circuit, as well as a motion to stop all proceedings in the district court, including canceling the district court’s preliminary injunction hearing. 
• August 27: The Fifth Circuit Court of Appeals issued an order stopping all proceedings in the district court, including canceling the district court’s preliminary injunction hearing. The court also denied the plaintiffs’ request to expedite the appeal of defendants’ motions to dismiss. 
• August 29: The plaintiffs filed for emergency relief with the Fifth Circuit, which was quickly denied.
• August 30: The plaintiffs filed an emergency request with the U.S. Supreme Court, asking it to block the law before it could take effect on September 1 or to allow district court proceedings to resume.
• September 1: S.B. 8 took effect after the Supreme Court did not respond to plaintiffs’ request before the law’s effective date. Late that same day, the Supreme Court denied the plaintiffs’ emergency request to block the law and allowed Texas’s six-week abortion ban to remain in effect. The case returned to the Fifth Circuit for briefing on defendants’ appeal of the district court’s denial of their motions to dismiss. 
• September 10: The Fifth Circuit issued an order explaining its refusal to block the law, and expedited the defendants’ appeals to “the next available oral argument panel.”  
• September 22: The Fifth Circuit issued a briefing schedule that will not allow the case to be heard until at least December. 
• September 23: Plaintiffs filed a petition for writ of certiorari before judgment with the U.S. Supreme Court asking it to hear defendants’ appeal on an expedited basis and bypass further proceedings in the Fifth Circuit. 
• October 6: In a separate case filed by the DOJ, a federal district court judge temporarily blocked the law. The state appealed this to the Fifth Circuit.
• October 8: The Fifth Circuit administratively stayed the district court’s injunction in the DOJ case, allowing the law to take effect once more. 
• October 14: The Fifth Circuit issued another order doubling down on its decision to keep the law in effect pending the state’s appeal of the injunction. It also set the case for oral argument in December.
• October 18: The DOJ asked the Supreme Court to lift the Fifth Circuit’s stay and to also hear defendants’ appeal on an expedited basis, bypassing further proceedings in the Fifth Circuit.
• October 22: The Supreme Court agreed to hear Whole Woman’s Health v. Jackson and the DOJ’s case on November 1 but did not grant the DOJ’s request to immediately block the law.
• October 27: The Center filed its opening Supreme Court brief in Whole Woman’s Health v. Jackson,as did the DOJ and the defendants in both cases.

The plaintiffs in Whole Woman’s Health v. Jackson are represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, the Lawyering Project, the American Civil Liberties Union (ACLU), the ACLU of Texas, Morrison & Foerster LLP, and Austin attorney Christen Mason Hebert. The defendants include a class of state court trial judges and county clerks in Texas, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the Texas attorney general, and the Director of Right to Life East Texas, who has already openly called for people to sue their local abortion providers under S.B. 8.