Attorney General Bonta: Texas Abortion Ban is Unconstitutional and Contravenes Nearly Half a Century of Supreme Court Precedent

Monday, October 18, 2021
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Joins coalition in support of United States’ application to the U.S. Supreme Court to restore an order halting Senate Bill 8

SAN DIEGO – California Attorney General Rob Bonta joined 23 other state attorneys general in urging the U.S. Supreme Court to restore an injunction barring enforcement of Senate Bill 8 (SB 8) – Texas’ unconstitutional abortion ban. In an amicus brief filed today in United States of America v. State of Texas, et al., the coalition supports the United States’ challenge to the law and urges the Supreme Court to vacate the Fifth Circuit Court of Appeals’ stay of a District Court order blocking the ban from going into effect. 

“Unconstitutional bans on abortion like Texas’ SB 8 have set this country back 50 years and plunged us into a preventable healthcare crisis,” said Attorney General Bonta. “Prohibiting a patient from making the deeply personal decision about whether to carry a pregnancy to term before viability not only violates the law, but puts the health and well-being of those patients and their families in jeopardy. This coalition is backed by nearly 50 years of Supreme Court precedent. We will continue to support challenges to Texas’ ban and others like it.”

SB 8 bans nearly all pre-viability abortions in Texas, even in cases of rape, sexual abuse, and incest. Similarly unconstitutional bans have been passed and challenged in several states. However, lawmakers in Texas added to their ban a private enforcement scheme that allows private citizen bounty hunters to sue individuals for “aiding or abetting” an abortion that violates SB 8, and incentivizes such suits with a $10,000 reward.

As today’s brief explains, most patients must now travel out of Texas to obtain an abortion, making it too difficult, too time intensive, and too costly for many. As a result of SB 8, many will now be forced to carry unwanted pregnancies to term, and shoulder the negative health and socioeconomic consequences. The coalition’s brief also explains that “the harms caused by SB 8 are rippling well beyond Texas into other states, as people are forced to seek care elsewhere, in many places overwhelming capacity and threatening our own residents’ access to care.”

The Attorney General is committed to ensuring that Californians who visit, work in, or attend school in Texas are guaranteed access to fundamental reproductive healthcare, and that California healthcare providers licensed to provide abortion services in Texas are protected from potential liability under Texas’ unconstitutional law. Attorney General Bonta also seeks to halt enforcement of the ban to affirm the principle that a state may not evade judicial review of an unconstitutional law by crafting a private enforcement scheme.

Attorney General Bonta will continue to challenge laws that unlawfully infringe upon reproductive freedom. In September, the Attorney General led a multistate amicus brief, filed in the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization, concerning Mississippi’s ban on pre-viability abortions. In the same month, the Attorney General joined a multistate coalition in filing an amicus brief in Planned Parenthood v. Wilson – a case challenging South Carolina’s unconstitutional abortion ban. In July, Attorney General Bonta co-led a coalition of state attorneys general in submitting a comment letter to the U.S. Department of Health and Human Services (HHS) supporting their reversal of the Trump Administration’s 2019 Separate Abortion Billing Rule that violated Section 1303 of the Affordable Care Act. In May, the Attorney General co-led a coalition in expressing support for and offering suggested revisions to HHS’s Proposed Rule that undid the Trump-Pence Administration’s harmful 2019 Title X Rule. The now final Rule rectified many of the harms the 2019 Rule caused women, including allowing Title X clinics to provide a referral for an abortion, if requested by the patient, and removing the current required physical separation of Title X funded services from abortion care. In April, the Attorney General’s office joined a coalition in filing an amicus brief challenging Tennessee’s unconstitutional abortion ban. In September, the U.S. Court of Appeals for the Sixth Circuit blocked the ban. 

In filing today’s amicus brief, Attorney General Bonta joined the attorneys general of Massachusetts, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia.

A copy of the brief is available here.

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