Fast-Tracked SB 8 Hearing Set for U.S. Supreme Court

Abortion rights advocates protest outside the Texas State Capitol during the 2021 Women's March ATX on Oct. 2 (Photo by John Anderson)

In a rare move, the U.S. Supreme Court fast-tracked two legal challenges to the Texas abortion ban, agreeing to hear the cases this Monday, Nov. 1.

In effect for more than 50 days, Senate Bill 8 bars abortions once embryonic cardiac activity can be detected, which is usually around six weeks. Since at least 80% of women don't realize they are pregnant this early on, the law amounts to a near-total ban in the second largest state in the U.S., making Texas largely a post-Roe v. Wade environment.

SCOTUS – now stacked strongly against reproductive rights – will hear oral arguments from Texas abortion providers, who sued in July (as Whole Woman's Health v. Jackson) and the U.S. Department of Justice, which filed its suit in September (as the United States v. Texas) to block the implementation of SB 8. While Austin-based U.S. District Judge Robert Pitman (ruling in the DOJ suit) stayed the law on Oct. 6, calling it an "offensive deprivation" of constitutional rights, the conservative 5th U.S. Circuit Court of Appeals reinstated the measure just two days later at the request of the state.

Similar so-called "heartbeat bills" adopted in other states have swiftly been blocked by the courts following SCOTUS's precedent in Roe, which protects the right to provide or receive abortion care until a fetus could survive outside the womb, generally 20 weeks at a minimum. The high court is also in a few weeks hearing a Mississippi case that the state hopes will overturn and supersede Roe by imposing a 15-week ban.

But the court's task regarding SB 8 is different and prompted by the law's unusual vigilante enforcement procedures, which allow private citizens to sue anyone who "aids or abets" abortion care and collect $10,000 bounties. The justices will look at whether states can "insulate" such laws from federal court review by delegating enforcement to the public, and also whether the U.S. government has the authority to block the law, as the DOJ has asserted in its suit. Providers and attorneys are hopeful that the court will issue a ruling not too long after the Nov. 1 hearing.

In a blistering (partial) dissent, Justice Sonya Sotomayor admonished the court for keeping SB 8 in place pending the hearing, writing that its impact has been "catastrophic" and that its "ruinous effects" were not only foreseeable but intentional. "I cannot capture the totality of this harm in these pages," wrote Sotomayor. She cautioned that for the many women facing obstacles to abortion care, relief – if it ever comes – will be too late. "The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now. These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether," wrote Sotomayor. "Because every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent."

The law is already wreaking havoc on the reproductive health care network in Texas and pushing care out of reach for thousands of women, say providers and advocates. In a recent press call, Dr. Amna Dermish, Austin abortion provider and regional medical director at Planned Parenthood of Greater Texas, broke down in tears as she described the "horrific" experience her patients face when turned away for abortion care past the six-week mark. "I'm being forced to inflict pain on my patients when the reason I became a doctor was to help and to heal them," said an emotional Dermish. "I'm weary and heartbroken about the very real possibility the Supreme Court won't block this cruel law."