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Lambda Legal Reacts to Supreme Court Decision Allowing Challenge to Texas Abortion Ban to Move Forward

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December 10, 2021
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Today, the United States Supreme Court allowed Texas abortion providers’ lawsuit challenging Senate Bill 8 to move forward against a subset of the state defendants originally named in the suit, but took no action to block the law’s impact in the meantime. The law bans abortions in Texas after six weeks – before most people even know they are pregnant – and creates a bounty-hunter regime allowing virtually anyone and everyone to file harassing lawsuits against people, clinics, or organizations providing or supporting abortion access. In a separate decision, the Supreme Court dismissed and sent back to lower courts the U.S. Department of Justice’s petition to vindicate the constitutional rights of Texans that are being blatantly violated by this law.  

Lambda Legal Chief Strategy Officer and Legal Director, Sharon McGowan issued the following statement:

“Although the Supreme Court has allowed the challenge to SB 8 to proceed against certain state defendants, the Court once again has failed in its obligation to vindicate constitutional rights against an effort by a state to nullify them, with deeply troubling implications. The enforcement scheme devised by the state of Texas was intended to create an end-run around judicial review, and a majority ofthe Court was willing to acquiesce in this scheme to violate the Constitution with impunity. As Chief Justice Roberts noted in his opinion dissenting in part, ‘The clear purpose and actual effect of S.B. 8 has been to nullify [the Supreme] Court’s rulings’ regarding abortion.”

“As the Chief noted, ‘the Constitution is the fundamental and paramount law of the nation.’  Yet, through its decision today, a majority of the Court has sent the dangerous message that it will abdicate its responsibility when states brazenly attempt to annul constitutional guarantees by ignoring decisions of the Supreme Court.  As the Chief Justice correctly notes, when states are allowed to act as Texas has done here, ‘the constitution itself becomes a solemn mockery.’ Today’s decision will certainly embolden other states to continue to test whether our current Supreme Court can be trusted to play its essential role as a defender of constitutional liberties and of the rule of law. This decision also will embolden those who wish to place bounties on the heads of other people who are simply exercising constitutionally guaranteed rights. The Court’s ruling causes us grave concern about the fate not only of abortion rights, but of other protected liberties, including those relied upon by the LGBTQ community to protect ourselves and our families, which remain under relentless attack.  

“We support Whole Woman’s Health, other abortion providers, abortion funds, support networks, and clergy members in Texas who have been and want to continue providing this critical health care for so many, as well as their advocates, Center for Reproductive Rights, Planned Parenthood Federation of America, the Lawyering Project, the ACLU, and ACLU of Texas.  We are outraged that SB 8 continues to block access to life-saving health care, of which abortion is an essential component, full stop. People have been suffering and will continue to suffer grave harm since this law went into effect, and lives will be lost as a result of this unconstitutional infringement on abortion access. And the price will be exacted most heavily, as it always is, on the most vulnerable in our community —women, LGBTQ+ people, people of color, people who experience domestic violence, disabled people, immigrants, people working to make ends meet, and especially those living with multiple marginalized identities. No one should lose sight of these grave realities.”