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Supreme Court ruling on Texas abortion ban is a narrow victory for abortion rights

The ruling lets abortion providers challenge the Texas abortion ban in court but leaves the law in effect

Emily Halvorson, center, of Washington, with Planned Parenthood, joins abortion rights and antiabortion activists as they rally outside the Supreme Court on Nov. 1. (Jacquelyn Martin/AP)

The Supreme Court ruling Friday to allow Texas abortion providers to sue over the state’s ban on most abortions was a narrow win for abortion rights, supporters and opponents said.

The law, which went into effect in September, allows private citizens to sue doctors or anyone else who helps facilitate an abortion in Texas after cardiac activity is detected in the womb, usually around six weeks of pregnancy, before many people know they are pregnant. Researchers at the University of Texas at Austin found that the number of abortions fell by half during the ban’s first month from 5,377 statewide in August to 2,164 in September.

The 8-1 decision allows providers to return to a district judge who once blocked the law, but it keeps the country’s most restrictive abortion ban in place for now.

Abortion rights advocates largely welcomed the ruling but took issue with the justice’s decision not to also block the law as it works its way through the courts.

“While it is a positive development that abortion providers can continue their legal challenges against the blatantly unconstitutional law, it is unconscionable that the Court is allowing the ban to remain in effect throughout the legal process,” Elizabeth Nash, a principal policy associate for the Guttmacher Institute, said in a statement.

An abortion doctor from Kansas City, Mo., travels across state lines every month to provide care at clinics in the Midwest. (Video: Whitney Leaming, Alice Li/The Washington Post)

Antiabortion activists were pleased that the law remains in effect.

Though the ruling gives abortion providers “the green light to attack,” Texas Right to Life legislative director John Seago said, the court’s decision to leave the law in place will continue to limit pregnant people’s access to the procedure.

“The Supreme Court’s principled decision today directly results in saving more pre-born human lives,” said Human Coalition Action Texas’s national legislative adviser, Chelsey Youman, who testified in favor of the law before both the Texas House and Senate. “The decision today will allow civil lawsuits over illegal abortions to continue. Texas abortion providers will have to defend themselves in court like any other citizen accused of breaking the law.”

Doctors across the state said Friday’s ruling didn’t change anything for them. Though at least one provided an abortion after six weeks, most stopped offering the procedure after six weeks and some stopped performing abortions altogether. Blair Cushing, a doctor who flies in from California to perform abortions in McAllen, said she will continue to send patients out of state if they are more than six weeks pregnant, but she worries some may be confused by the court’s decision.

Amy Hagstrom Miller, who as president and chief executive of Whole Woman’s Health and Whole Woman’s Health Alliance is the lead plaintiff in the Supreme Court case, said her clinics have had to turn hundreds of patients away since the ban took effect.

“The Supreme Court’s refusal to block the law means the heartbreak doesn’t end,” Miller said in a statement. “Our fight against this law is not over, and Whole Woman’s Health is here for the long haul. We hope this law is blocked quickly so we can resume the full scope of abortion care we are trained to provide.”

Even if lower courts do block the law in the coming weeks, abortion providers say they may struggle to meet patient need. At Whole Woman’s Health, one of the state’s largest abortion providers, nine of the network’s 17 doctors in the state stopped performing abortions when S.B. 8 took effect.

Mai Fleming, a family doctor based in Oakland, Calif., used to fly to Austin every month to provide abortions at Whole Woman’s Health. She stopped going when the law took effect, she said, because she feared someone would file “a frivolous lawsuit” against her. Fleming and other doctors say they worry lawsuits could hinder their ability to secure malpractice insurance or medical licenses in other states.

“I’m still caught in the same limbo,” she said. “The people of Texas are still caught in the same limbo.”

Others say they worry the Court’s narrow decision will empower antiabortion activists in other states to pass comparable laws. At least one lawmaker, Mary Elizabeth Coleman (R) in Missouri, plans to file legislation modeled on the Texas law, and a similar bill is pending in Ohio.

“The high court’s failure to completely overturn the Texas ban signals to other states that it is open season on women’s rights and lives,” Marcela Howell, president and CEO of In Our Own Voice: National Black Women’s Reproductive Justice Agenda, said in a statement. “And we know that Black women and women of color will once again be the first in their sights.”

As the courts hash out the Texas law, Cushing and others said they are most concerned about the abortion case the court heard this month out of Mississippi. The case, which would allow Mississippi to ban abortion at 15 weeks, provides a clear path to dismantling Roe v. Wade, the 1973 ruling in which the court determined a constitutional right to abortion. If Mississippi prevails, 21 states are poised to ban or severely restrict abortion access. Some have pre-Roe abortion bans on their books that would become enforceable again, and others have passed post-Roe “trigger laws” — bans that would take effect automatically or with state action if the Supreme Court overturns the law.

Texas passed its own trigger law this year, and if it goes into effect, doctors would face more than lawsuits — they could be prosecuted for a felony if they perform abortions.

“The Mississippi judgment is the one that really weighs on me,” Cushing said, “because at least now we’re operational.”