Supreme Court issues ruling on Texas abortion law

By Aditi Sangal, Adrienne Vogt, Melissa Macaya and Melissa Mahtani, CNN

Updated 8:48 PM ET, Fri December 10, 2021
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8:38 p.m. ET, December 10, 2021

Here's what the Texas abortion law does — and what it means for women seeking abortions in the state

From CNN's Ariane de Vogue

The Supreme Court ruled Friday that a Texas abortion law, that bars the procedure after the first six weeks of pregnancy, can remain in place, but the justices said that abortion providers had the right to challenge the law in federal court.

The law, known as SB 8, bars abortions after the detection of a fetal heartbeat at around six weeks — often before a woman knows she is pregnant. It is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

The law has no exception for rape or incest.

After the justices allowed the law to go into effect on Sept. 1, with Chief Justice John Roberts joining the liberal justices in dissent, women in the state scrambled across state borders and lower-income women were left with few options.

Supporters and critics of the law weighed in with "friend of the court" legal briefs, attempting to illustrate the broad impact of a potential ruling.

Massachusetts Attorney General Maura Healey, a Democrat, leads a coalition of 24 attorneys general siding with the abortion providers in the state. In their brief, Healey detailed how clinics in neighboring states are overwhelmed with patients from Texas. Healey warned the justices that if they were to greenlight the Texas law, other states could draft similar laws in areas such as gun rights, marriage equality and voting rights.

Healey told the court that the states recognize the "vital role" that judicial review plays in resolving tensions between a state's policy preference and a constitutional right.

"Where longstanding precedent clearly and unambiguously forecloses a particular policy as unconstitutional, a State cannot be permitted to disregard that precedent by passing an unconstitutional law and shielding it from judicial review," Healey argued.

Indiana and 19 other Republican-led states filed a brief in support of Texas, arguing that the district court that ruled in favor of the Department of Justice "threatens to expose every State in the Union to a suit by the federal Executive Branch whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere."

8:38 p.m. ET, December 10, 2021

Here's what happens next in the Texas abortion law case

From CNN's Ariane de Vogue

The Supreme Court's action today means that the case will return to a district court for further proceedings, opening up the possibility that the law could soon be suspended.

The opinion allows the providers to challenge the law in court, giving them a narrow victory.

But it limits which state officials can be sued. This could make it difficult for abortion providers to carry out procedures after six weeks of pregnancy.

The decision also makes it difficult for abortion providers in Texas to prevent future civil lawsuits against them for performing abortions. Under the state law, any private citizen across the country can sue individuals thought to have assisted in violating the state’s so-called heartbeat ban. 

5:38 p.m. ET, December 10, 2021

Biden says he is "very concerned" by SCOTUS ruling on SB 8

From CNN's DJ Judd

President Biden said he’s “very concerned by the Supreme Court’s decision to allow SB 8 to remain in effect, in light of the significant consequences that law has for women in Texas and around the country, and for the rule of law.”

“As I have made clear from day one, I am deeply committed to the constitutional right recognized in Roe v. Wade nearly five decades ago,” the president writes, adding that “while it is encouraging that the Court ruled that part of the providers’ lawsuit may continue, this ruling reinforces that there is so much more work to be done—in Texas, in Mississippi, and in many states around the country where women’s rights are currently under attack," Biden said in a statement Friday afternoon. “I will continue to work with Congress to pass the Women’s Health Protection Act. We have more work to do, but I will always stand with women to protect and defend their long-recognized, constitutional right under Roe v. Wade.”

White House Press Secretary Jen Psaki said earlier Friday that Biden is “deeply committed to the constitutional right recognizing Roe v. Wade, and he has argued and advocated in the past for codifying Roe through passing the Women's Health Protection Act."

Vice President Kamala Harris told reporters the court’s ruling “is an attempt to undo 50 years of precedent” on abortion.

4:16 p.m. ET, December 10, 2021

Harris says Supreme Court ruling is "an attempt to undo 50 years of precedent" on abortion

From CNN's DJ Judd

Vice President Kamala Harris speaks in the Ceremonial Office of the Eisenhower Executive Building in Washington, DC, on December 10.
Vice President Kamala Harris speaks in the Ceremonial Office of the Eisenhower Executive Building in Washington, DC, on December 10. (Roberto Schmidt/AFP/Getty Images)

Vice President Kamala Harris told reporters that the Supreme Court's Friday ruling upholding a Texas abortion law “is an attempt to undo 50 years of precedent."

“As far as I'm concerned, and as far as our administration is concerned, a woman's right to make decisions about her own body is non-negotiable,” Harris said. “And so, we will continue to fight for the constitutional rights of all women to make decisions about their own body without interference by some legislative group of people that think that they can replace their judgment with hers.”

Earlier Friday: White House press secretary Jen Psaki on Friday said President Biden is “very concerned by the Supreme Court’s decision allowing SB 8 to remain in effect” after the court left in place the Texas abortion law that bars the procedure after the first six weeks of pregnancy.

3:43 p.m. ET, December 10, 2021

White House: Biden is "very concerned" over SCOTUS ruling on Texas abortion law

From CNN's DJ Judd

White House Press Secretary Jen Psaki speaks to reporters in the Brady Press Briefing Room at the White House on December 10, in Washington, DC.
White House Press Secretary Jen Psaki speaks to reporters in the Brady Press Briefing Room at the White House on December 10, in Washington, DC. (Chip Somodevilla/Getty Images)

White House press secretary Jen Psaki said Friday that President Biden is “very concerned by the Supreme Court’s decision allowing SB-8 to remain in effect" after the Court left in place a Texas abortion law that bars the procedure after the first six weeks of pregnancy.

Psaki noted that Biden was attending former Sen. Bob Dole's funeral for "the majority of the day," and that a statement "in his name" would be released soon as they wanted the President to see and review it first.

Psaki added that Biden is especially concerned, “given the consequences the law has for women in Texas and around the country and for the rule of law.”

“I would just like to reiterate that the President is deeply committed to the constitutional right, recognizing Roe v. Wade, and he has argued and advocated in the past for codifying Roe through passing the Women's Health Protection Act,” Psaki said, calling Friday’s ruling “a reminder of how much these rights are at risk, and how women across the country who have now, in Texas especially — it's been 101 days since this was put in place, 101 days where their health, their health, their access to what has been law of the land for many decades now, has been questioned and challenged.”

Earlier Friday: Reporters asked Biden for his reaction to the Supreme Court’s ruling and told reporters in the South Court Auditorium, “My problem is I haven't seen — I just got back, I just walked here from delivering Bob Dole's eulogy. So, I haven't seen the report, I will take a look at what the Supreme Court said, I don't know what it said.”

2:29 p.m. ET, December 10, 2021

Planned Parenthood CEO: Ruling makes Supreme Court "complicit in widespread chaos and harm to Texans"

From CNN's Ariane de Vogue and Tierney Sneed

In statements after the decision came down, the abortion advocates who had challenged the law painted the Supreme Court's decision as a disappointment for how it will hinder the clinics' ability to continue to fight the ban in court.

"While the Court did not put a complete end to our legal challenge, its failure to stop Texas's deliberate nullification of the constitutional right to abortion within its borders makes the Court complicit in widespread chaos and harm to Texans, and responsible for giving the green light for other states to circumvent the constitution through copycat laws," Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement.

The question of whom providers' can sue in the federal court — while seemingly technical — could be hugely consequential in the abortion advocates' efforts to block the law in a way that will let abortions resume after six weeks.

More background: By limiting whom abortion providers can sue, the Supreme Court left open the possibility that the abortion providers may ultimately win ruling in their favor, but because it only blocks those select officials from enforcing the law, it won't be enough to allow clinics to reopen their doors.

That is because of the six-week ban's novel enforcement mechanism. The law allows private citizens — from anywhere in the country — to bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law.

If lower courts are only allowed to issue orders blocking the select state officials from enforcing the ban, it is unclear if that will be enough to allow clinics to resume the procedure, as they might still face state court litigation from private citizens seeking to enforce the ban.

1:01 p.m. ET, December 10, 2021

How overturning Roe v. Wade could impact women seeking abortions in Texas and other states

From CNN's Tierney Sneed and Priya Krishnakumar

A Supreme Court decision that overturned Roe v. Wade could bring abortion bans to as many as half the states in the country already poised to prohibit the procedure. Such a move would also have knock-on effects on the primarily blue states that would maintain access to abortion.

A Roe v. Wade reversal — and the flood of abortion restrictions such a ruling would usher in — stands to affect the distance women would have to travel to their nearest clinic, according to a new report released this week by the Guttmacher Institute. The institute, which favors abortion rights, used data from the US Census Bureau to estimate the number of women of reproductive age living in each Census block and calculated the driving distance to the closest abortion clinic.

Illinois, North Carolina and California are among the states that could see the biggest jump in out-of-state abortion patients, as their clinics would be closest for women whose own states are positioned to quickly ban the procedure, according to Guttmacher's analysis.

In states like Louisiana, Texas and Idaho, women would see the distance they'd have to travel to the nearest clinic increase by tenfold or more, if Roe v. Wade was reversed and abortion bans went into effect in the states most likely to implement them.

The Supreme Court ruled Friday that the Texas' six-week abortion ban, which prohibits abortion after fetal cardiac activity, could remain in place. The justices, however, said that abortion providers had the right to challenge the law in federal court. 

The law appears to run afoul of the constitutional protections for pre-viability abortions — a point usually around 23 weeks into the pregnancy — that the Supreme Court enshrined in its 1973 Roe decision.

The Texas law has already given a preview of what abortion access would like if other states were allowed to implement extreme limits on the procedure or outright bans. Clinics in Oklahoma and Kansas have reported major surges in Texas patients, prompting delays for residents in their own states to get appointments, while Texas women have traveled as far as Colorado and California to obtain the procedure, according to court filings in the case.

During oral arguments in November, justices limited their review to the law's novel structure, which bars state officials from enforcing it. Instead, private citizens — from anywhere in the country — can bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law. Critics say the law was crafted to shield it from challenges in federal courts and stymie attempts by abortion providers and the government to sue the state and block implementation.

CNN's Ariane de Vogue contributed reporting to this post.

12:02 p.m. ET, December 10, 2021

How we got to today's Supreme Court ruling 

From CNN's Ariane de Vogue and Tierney Sneed

On Sept. 1, the Supreme Court, in a 5-4 vote, allowed the Texas law to go into effect while the appeals process played out with Chief Justice John Roberts siding with the liberals in a dissent. Since then, women in Texas have scrambled across state borders to obtain the procedure, and poor women — without the means to travel — were left with few options.

Lawyers fighting the law called it blatantly unconstitutional and designed with the express intent to make challenges in federal court nearly impossible, therefore nullifying a woman's constitutional right to an abortion.

"Texas designed SB 8 to thwart the supremacy of federal law in open defiance of our constitutional structure," said Solicitor General Elizabeth Prelogar, arguing for the Justice Department, during oral arguments on Nov. 1. "States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the court's decisions in their borders and block the judicial review necessary to vindicate federal rights."

SB 8, the law in question, bars abortions after the detection of a fetal heartbeat at around six weeks — often before a woman knows she is pregnant — and is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

While both the providers and the Biden administration had won challenges in federal district court, the conservative 5th US Circuit Court of Appeals reversed those decisions and allowed the law to remain in effect.

The law's novel structure, which bars state officials from enforcing it, is a central part of the litigation.

What happened today: The Supreme Court left in place Friday a Texas abortion law that bars the procedure after the first six weeks of pregnancy, but the justices said that abortion providers have the right to challenge the law in federal court.

The court's action means that the case will return to a district court for further proceedings, but it may still be difficult for providers to open their doors again.

11:22 a.m. ET, December 10, 2021

The Supreme Court decision makes it difficult for abortion providers to stop future civil lawsuits

From CNN's Ariane de Vogue

The Supreme Court is seen in Washington, DC, on November 1.
The Supreme Court is seen in Washington, DC, on November 1. (Mandel Ngan/AFP/Getty Images)

The Supreme Court decision makes it difficult for abortion providers in Texas to prevent future civil lawsuits against them for performing abortions. Under the state law, any private citizen across the country can sue individuals thought to have assisted in violating the state’s so-called heartbeat ban. 

“The providers won in the sense that their challenge to S.B.8 is allowed to go forward against these state licensing officials, but more importantly, they lost in the sense that they can’t sue anyone else — so that even if their suit succeeds, it’s unlikely to provide them with the relief they need to reopen their doors, that is, to prevent future lawsuits against them for performing abortions,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

By a vote of 8-1, the court allowed the providers’ challenge to move forward against some state officials, but they divided 5-4 on whether other officials could be sued.

Justice Neil Gorsuch said that the court had agreed to hear the case to see if certain abortion providers could challenge the law. “We conclude that such an action is permissible against some of the named defendants but not others,” Gorsuch wrote.

Justice Sonia Sotomayor, writing for her liberal colleagues, said the court should have gone much further and blocked the law from going into effect when it had the chance back in September while the appeals process played out.

“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” she said.

Sotomayor said it was a good thing that the challengers would be able to go into court to challenge the law and that she hoped that a district court would “act expeditiously” to enter the relief.

But, she said, because the court limited which officials could be sued, it will make the legal challenges more difficult to bring, which in turn, could make it more difficult for the providers to open their doors again.