What exactly is going on with the abortion ban in Texas?


As of Monday morning, abortions remain nearly totally banned in Texas.

The flurry of litigation over S.B. 8, Texas' recent ban on abortion as early as six weeks' gestation, just won't stop.  

It went into effect at 12:01 a.m. on Sept. 1 after the U.S. Supreme Court chose not to issue a stay, even though the law contains an unusual enforcement mechanism allowing private citizens to sue providers and other individuals who help people get abortions.

The Supreme Court's decision wasn't the last word on the case, an emergency request for a stay brought by Whole Woman’s Health, an abortion health care provider in Texas, as it was only a refusal to block the law from taking effect — it wasn't a final decision on the case's merits. 

Because of that, providers continue to litigate to protect the right to abortion in the state, and the U.S. Department of Justice has joined them. That makes for some complex legal maneuvering that leads to ever-shifting answers on how available abortion remains in the state.

The Department of Justice sued Texas over the law on Sept. 9. On Sept. 15, the DOJ moved to temporarily restrain or enjoin the law, arguing that although Texas had shaped its law to avoid suits against the state by allowing for only private enforcement, nothing stopped the DOJ from suing the state. 

In a 113-page order issued on Oct. 6, a federal district court in Texas agreed with the Biden administration, saying, “This court will not sanction one more day of this offensive deprivation of such an important right.” That allowed abortions to resume in the state, but it was only a brief interlude. Two days later, the Fifth Circuit blocked the injunction against enforcing the law. 

It's not clear how many abortions were performed in that brief time, but there's a real danger for the people who performed them. The law has a retroactive application provision, so now that the law is back in force, providers and anyone else who assisted someone in obtaining an abortion can be sued under it.

The DOJ then appealed that ruling, and on Thursday, Oct. 14, the Fifth Circuit yet again affirmed the stay on the injunction that blocked the law, issuing a four-sentence opinion that the DOJ is expected to appeal to the Supreme Court.

It's not clear when that will happen, though the DOJ has moved very swiftly through this process, but it's also not likely to have a successful outcome. The Supreme Court already let this law stay in place once, and there's no reason to think, given the composition of the court, that the majority would change its mind.

If the Supreme Court doesn't overturn the stay, the law will remain in effect while the litigation works through the courts.

Meanwhile, the case brought by Whole Woman’s Health and other providers is still proceeding through the courts as well.  The Fifth Circuit set a briefing schedule for the case that wouldn't have the case heard until December. Because of that, the ACLU filed a petition for certiorari that asks for that the case be heard by the Supreme Court even before the appeal is considered by the Fifth Circuit. 

As of Monday morning, abortions remain nearly totally banned in Texas, and even total strangers can sue people they perceive are helping people receive vital health care. That’s in spite of the fact that there has as yet been no final decision on the merits of the law. 

Abortion clinic workers are exhausted and traumatized from having to turn away would-be patients. About half the clinics in the state say they won't perform any procedures again unless the ban is permanently blocked. Clinics across state lines are seeing a surge in patients. And all of these things will remain in limbo until this case is officially resolved.

Published with permission of The American Independent Foundation.