Attorney General Bonta: Texas Cannot Avoid Judicial Review of Its Unconstitutional Abortion Ban

Wednesday, October 27, 2021
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OAKLAND – California Attorney General Rob Bonta today, ahead of oral arguments before the U.S. Supreme Court on November 1, continued to support challenges to Senate Bill 8 (SB 8) – Texas’ blatantly unconstitutional ban on abortion. The Attorney General joined 24 attorneys general in filing an amicus brief in support of the federal government in United States of America v. State of Texas, et al. and in support of abortion providers in Whole Woman’s Health, et al. v. Jackson. In the brief, the coalition asks the Court to affirm the district court’s denial of a motion to dismiss a case brought by the abortion providers challenging SB 8, uphold the district court’s preliminary injunction in the United States’ case, and remand both cases for further proceedings.

“The right to choose to terminate a pregnancy before viability is not only deeply personal, it is also protected by the United States Constitution,” said Attorney General Bonta. “We will continue to oppose laws like SB 8 because Californians and all Americans should be able to exercise this right no matter where they are in this country. If Texas and other states are allowed to ban pre-viability abortion care, healthcare systems in states like California will be strained and patients in restrictive states will be left with few to no options for basic reproductive care. The stakes are high, and we will continue to fight to protect reproductive freedom and preserve nearly 50 years of Supreme Court precedent.”

SB 8 bans nearly all pre-viability abortions in Texas, even in cases of rape, sexual abuse, and incest, and includes a private enforcement scheme that allows private citizen bounty hunters to sue individuals for providing or “aiding or abetting” an abortion that violates the law, and incentivizes such suits with a $10,000 reward.

In the lower courts and before the U.S. Supreme Court, Texas has asserted that the private enforcement scheme prevents federal courts from intervening to prohibit state officers from enforcing SB 8. In today’s brief, the coalition urged the Court to reject Texas’ arguments and to hold that “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 federal judicial review.”

The effects of SB 8 have been devastating with 80-95% of abortion services that were previously provided in Texas now unlawful and unavailable. Since the law went into effect on September 1, 2021, most Texans are now forced to travel – if they have the time and resources – to states like California to obtain this safe and common medical procedure.

As today’s brief explained, abortion clinics in New Mexico were booked for weeks just one day after SB 8 went into effect. Patients traveling from Texas have accounted for close to a third of the total abortion patients in the state since September 1. 

California has also seen an increase in patients from Texas seeking abortion care, and that increase is only expected to grow if access to safe and legal abortion is banned in other states. In the brief, the coalition argues that allowing bans like Texas’ to stand means that “vast regions may be devoid of abortion providers, forcing some patients to travel even further to receive care, untenably straining health care systems in states like ours that continue to provide abortion access, and leaving the many patients without resources to travel simply unable to receive the care that they need, to the grave detriment of their health.”

Today’s brief explains that forcing a person seeking an abortion to carry an unwanted pregnancy to term can have far-reaching and dangerous consequences, including a greater risk of life-threatening complications such as postpartum hemorrhage and eclampsia. Others may face physical abuse when being forced to carry an unwanted pregnancy results in continuing contact with a violent partner. Many forced to carry pregnancies to term will also experience lower rates of full-time employment and other adverse socioeconomic harms.

Attorney General Bonta will continue to defend reproductive rights and challenge laws that unlawfully infringe upon reproductive freedom. This month, the Attorney General urged the U.S. Supreme Court to restore an injunction barring enforcement of SB 8. 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. The Court will hear arguments in the case on December 1, 2021. 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 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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