Bar Bulletin

Bar Bulletin

S.B.8 and Dobbs — What Lawyers Should Know

November 2021 Bar Bulletin

By Bridgette Jackson, Esq.

Texas. On October 22, 2021, the U.S. Supreme Court granted writ of certiorari for two cases challenging Texas’s Senate Bill 8 (S.B.8), which is a law that bans abortion care after six weeks of pregnancy. The S.B.8 cases before the Court are United States v. Texas and Whole Woman’s Health v. Jackson. Oral arguments for both cases are scheduled for November 1, 2021. 

In United States v. Texas, the United States Department of Justice filed a motion requesting the Supreme Court vacate the Fifth Circuit’s stay of the district court’s preliminary injunction. In this case, the Supreme Court will decide whether to block the S.B.8 again and whether the DOJ has the authority to bring this case. The court declined to rule on a request to block the ban before November 1.

The DOJ’s request, which was filed on October 18, 2021, asks the Supreme Court to block S.B.8 by vacating a preliminary injunction issued by the Fifth Circuit Court of Appeals.

On Friday, October 8, 2021, the Fifth Circuit granted Texas’s motion for an immediate administrative stay of injunction, which — once again — allows S.B.8 to go into effect, banning pre-viability abortion services.

On October 12, 2021, DOJ responded to the emergency motion, and its appeal was denied by the Fifth Circuit laying the foundation for DOJ’s appeal to the Supreme Court. 

In Whole Woman’s Health v. Jackson, the Supreme Court will decide whether federal courts have the power to block Texas’s abortion ban. In August 2021, plaintiffs asked the Supreme Court to block the ban before it took effect on September 1, 2021. In a contentious 5-4 decision, the Court denied the request for injunctive relief, citing “complex and novel” procedural questions regarding the Court’s authority to grant stay. The October 22nd order portends that the Supreme Court has agreed to hear arguments on those procedural questions.

S.B.8 bans abortion care after approximately six weeks of pregnancy — before many people know they’re pregnant. Since approximately 85 to 90 percent of people who obtain abortions in Texas are at least six weeks into pregnancy, the law effectively ends almost all abortion care in the nation’s second-largest state.

S.B.8 also shifts enforcement from state officials to any private individual in the United States. The new law penalizes physicians, as well as any individual, who “aids and abets” a patient in obtaining an abortion after six weeks. The law also awards a minimum $10,000 bounty to any private party who successfully sues under the law. This law not only incentivizes individuals — including anti-abortion activists to sue but also delegates enforcement to private individuals. 

The State legislature knows it cannot lawfully enforce S.B.8 under the Constitution. And yet those who successfully defend themselves against such lawsuits are prohibited from recovering their legal fees and costs. By contrast, plaintiffs do not face penalties for unsuccessful or frivolous suits and defendants must cover their own attorneys’ fees and costs — even if the defendant’s challenge is successful. Thus, the S.B.8 fee shifting provisions serve to dissuade lawyers from representing defendants in such cases. 

Three lawsuits have been filed in Texas state court against Dr. Alan Braid, the owner and medical director of Alamo Women’s Reproductive Services in San Antonio. On September 6, Dr. Braid provided abortion care to a Texas resident who was in the first trimester of her pregnancy, but beyond the limit under the new law. 

Two of the three state court lawsuits were filed in San Antonio, one by a resident of Illinois, and the other by a resident of Arkansas. The third lawsuit was filed in Smith County, Texas by an entity calling itself the Texas Heartbeat Project based in Bellaire, Texas. Using a federal action called interpleader, Whole Woman’s Health has asked the federal court to require all three S.B.8 plaintiffs to pursue their lawsuits against Dr. Braid in one proceeding. S.B.8 provides that persons sued under the Act could be forced into any of Texas’s 254 counties to defend themselves, and it prohibits transfer of the cases to any other venue without the parties’ joint agreement. Hence, the civil litigation rules put forth under S.B.8 usurp federal constitutional rules with distorted versions designed to maximize the abusive and harassing nature of the lawsuits and to make them impossible to defend fairly.

Texas’s extreme abortion ban has ended almost all abortion access in the state, leaving many Texans in crisis. Texans must now travel hundreds of miles each way to other states during a pandemic, just to exercise a clearly established federal right. The surge of Texans seeking out-of-state appointments for this time-sensitive medical care is causing backlogs, delaying abortions by weeks for Texans and non-Texans alike. Additionally, those without means or resources to travel to other states are now forced to carry to term or seek ways to induce an abortion without medical assistance, as reports now suggest more Texans are doing. 

Although S.B.8 has gripped the public’s attention, it is not the only anti-abortion law currently before the Supreme Court.

Mississippi. Another case before the Supreme Court is Dobbs v. Jackson Women’s Health Organization. In that case, the Court will review a 2018 Mississippi abortion law that bans abortion after 15 weeks of pregnancy. The Jackson Women’s Health case marks the first time the Court will rule on the constitutionality of a pre-viability abortion ban since Roe v. Wade.1 Mississippi enacted its abortion ban in direct defiance of Roe and the nearly 50 years of Supreme Court precedent affirming Roe’s core holding — that every pregnant person has the right to decide whether to continue their pregnancy prior to viability.

Mississippi already had some of the most restrictive abortion laws in the country — including state-mandated biased counseling, a mandatory delay period, and a ban on telemedicine for abortion care — making it difficult and sometimes impossible to access abortion care in the state. Mississippi is one of 12 states with trigger bans, intended to prohibit abortion entirely if Roe is overturned and is one of the 14 states that have recently passed pre-viability abortion bans. Abortion remains legal in Mississippi and the 15-week ban remains blocked while the case proceeds.

Since Roe was decided in 1973, every ban on abortion (at varying points in pregnancy) that has been challenged has been struck down. Yet even as Roe stands, states have found ways to push abortion further out of patients’ reach. Restrictions on abortion care disproportionately harm people who already face significant barriers to accessing health care — particularly Black, Indigenous, and people of color and people having difficulty making ends meet. If Roe falls, states hostile to abortion rights could move to ban abortion entirely, and the impact would fall hardest on those same people. There are over 60 bills that have been enacted in state legislatures to restrict abortion access. Moreover, since the start of the 2021 state legislative sessions there have been over 550 bills introduced that seek to restrict abortion access. 

Oral argument in Dobbs v. Jackson Women’s Health Organization is scheduled to take place at the Supreme Court on December 1, 2021. 

Bridgette Jackson, Esq. is counsel at theWashington, D.C. office of the Center for Reproductive Rights. The Centerfor Reproductive Rights represents Whole Woman’s Health in the Texas S.B.8 case, Whole Woman’s Health v. Jackson, and Jackson Women’s Health Organization in Dobbs v. Jackson Women’s Health Organization. To learn more about these cases and others, or to get involved, please contact or fill out the form at com/Pages/ResponsePage.aspx?id=eRVF5XoFgkaWVrlUj5S2ZRql2htXMN1Jol3j45VyK8lUNk5WMjVKTTNFNEFFOUhLRU9 FQkVIR0FJQS4u.

1 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) – Ed. 

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