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Supreme Court denies emergency stay of Texas abortion ban

A sweeping set of restrictions outlawing most abortions in Texas took effect on Wednesday after the U.S. Supreme Court refused to issue an emergency stay, making the state the first in the nation to effectively ban the procedure since the 1973 Roe v. Wade decision.

In a decision issued late Wednesday evening, a divided Supreme Court ruled 5-4 to deny an emergency appeal made by the abortion providers. Chief Justice John Roberts joined in the dissent with the high court's three liberal justices: Justice Elena Kagan, Justice Stephen Breyer and Justice Sonia Sotomayor.

“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” Sotomayor wrote in her dissent.

The law, passed along party lines in the Republican-controlled Texas Legislature and signed by Governor Greg Abbott in May, prohibits abortions once a fetal heartbeat is detected, as early as six weeks, unless a medical emergency necessitates the procedure. It also hands power over to private citizens to sue doctors, or anyone who aids and abets the procedure, with fines of at least $10,000 per violation.

“Today is a somber day,” said Marc Hearron, senior counsel for the Center for Reproductive Rights and lead attorney challenging the law. “As of now, most abortion is banned in Texas.”

Hearon said on a call with reporters Wednesday morning, when the law took effect, that he and the coalition of abortion providers he represents were waiting for the Supreme Court to act and evaluating their next steps, adding “we’re obviously not giving up.”

Just over 20 abortion providers across Texas were set to present witness testimony and legal arguments Monday in Austin federal court against Senate Bill 8, which they claimed “creates a bounty hunting scheme” that encourages the general public to target abortion providers.

But on Friday evening the Fifth Circuit, viewed as one of the most conservative appeals courts in the country, issued a three-paragraph order that effectively canceled the hearing. An emergency motion filed by the abortion providers asking for a temporary stay, or for the case to be sent back to the lower court, was denied Sunday.

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Between 85 and 90% of abortions take place after a woman reaches six weeks of pregnancy, abortion activists say. The ban makes no exceptions for rape or incest.

The last abortion in Texas was completed at 11:56 p.m. Tuesday night in Fort Worth, according to Amy Hagstrom Miller, who leads Whole Woman’s Health and Whole Woman’s Health Alliance. Miller described a chaotic scene inside the four Whole Woman’s Health clinics across the state in the final hours of legal abortions Tuesday.

“Our waiting rooms were filled with patients and their loved ones in all four of our clinics yesterday,” she said. “We had a physician who has worked with us for decades in tears as he tried to complete the abortions for all the folks who were waiting in our Fort Worth waiting room.”

Anti-abortion protesters stood guard outside the Fort Worth clinic throughout day, according to Miller, calling the police on two occasions, as well as the fire department, and then shining a spotlight on the office once night fell.

“We were under surveillance. This is not abstract, this is real for our team,” Miller said. She said the clinics were providing care “in accordance with the law” Wednesday but vowed to continue fighting for women’s access to abortion.

Abbott, a Republican up for reelection in 2022, has said the law was necessary to ensure “that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”

But the law is poised to test the limits on a state’s ability to ban the procedure in the face of a conservative Supreme Court majority. It also opens up a Pandora's box of potential citizen-led litigation that could cripple abortion providers, who under the law are unable to recoup legal fees even if successful in court.

Anti-abortion advocates were in high spirits Wednesday as it became clear the law would effectively ban the procedure in Texas.

“The culture of life is winning,” said Joe Pojam, executive director of Texas Alliance for Life. “Our hope is that the [Supreme Court] will modify or reverse Roe and allow states to ban abortion when it takes up the Dobbs case later this year.”

The Supreme Court will hear a case involving Mississippi's 15-week ban in the coming months, though oral arguments have not been scheduled.

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Between 85 and 90% of abortions take place after a woman reaches six weeks of pregnancy, abortion activists say. The ban makes no exceptions for rape or incest.


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