|RICHMOND (October 18, 2021) – Attorney General Mark R. Herring is urging the United States Supreme Court to stop Texas’ unconstitutional six-week abortion ban, Senate Bill 8 (S.B. 8), by vacating the Fifth Circuit Court of Appeals’ stay of a District Court order blocking the ban from going into effect. Attorney General Herring has joined a coalition of 24 attorneys general in filing an amicus brief with the Supreme Court in the case of United States of America v. State of Texas et. al. supporting a challenge by the U.S. Department of Justice (DOJ) and calling on the Court to not allow Texas to openly disregard nearly a half century of precedent by keeping this unconstitutional, across-the-board ban in place within its borders.
“A lower court has already blocked Texas’ blatantly unconstitutional abortion ban once and the Supreme Court must do the same, ultimately upholding the decades-long constitutional right to an abortion in this country,” said Attorney General Herring. “Texas’ ban is part of a disturbing wave of incredibly restrictive abortion laws, being passed around this country, that deprive a woman of the right to make decisions about her own body and her own life. During my time as attorney general, I have been dedicated to protecting a woman’s right to choose and I will not back down now.”
According to Attorney General Herring’s amicus brief, S.B. 8 not only imposes a ban on almost all abortions in Texas in open disregard of the Supreme Court’s precedent, but also attempts to thwart judicial review and insulate Texas from accountability by purporting to create only a private enforcement scheme. Texas created a structure within its state court system that requires courts to award at least $10,000 as well as injunctive relief to claimants who bring cases against providers and those who “aid or abet” such constitutionally protected care. As such, the law threatens potential liability for anyone who so much as gives a patient a ride to an abortion provider.
In accordance with the ban, providers in Texas have largely stopped providing abortion care to their patients. This has affected not only patients in Texas, but clinics and patients in states like California, Colorado, Illinois, Kansas, Nevada, and Oklahoma. In New Mexico, in particular, an influx of patients from Texas has already strained provider resources and made it more difficult for New Mexico residents to receive timely care.
“Most patients now must travel out of state, which makes abortion for many people too difficult, too time-intensive, and too costly,” the brief states. “Consequently, many will now be forced to carry unwanted pregnancies to term, resulting in negative health and socioeconomic consequences for both them and their children. And the harms caused by S.B. 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.”
Attorney General Herring and his colleagues are urging the Supreme Court to stop S.B. 8 from inflicting further irreparable harm. It cites back to past examples from our Nation’s history, particularly related to some states’ resistance to desegregation, in arguing that the Court should not permit states to violate constitutional rights through state laws ostensibly enforced only by private parties. The Court “should not permit Texas to ‘nullif[y] indirectly’ the constitutional rights recognized in Roe and Casey through the ‘evasive scheme’ that it has created in S.B. 8,” the brief argues.
Attorney General Herring has been a strong advocate for women’s healthcare and reproductive rights in Virginia. Last month, Attorney General Herring led a coalition of 21 attorneys general in filing an amicus brief in Planned Parenthood South Atlantic v. Wilson arguing that South Carolina’s six-week abortion ban harms women’s healthcare and a lower court’s ruling blocking the law should be upheld. He has stood against attacks on women’s reproductive freedom and has fought in court to defend women’s access to comprehensive healthcare services, including abortion and birth control. He issued an official advisory opinion that helped protect women’s health clinics from expensive and medically unnecessary retrofits that would have closed many Virginia clinics that offer abortion services. Attorney General Herring successfully fought alongside his colleagues in the Whole Women’s Health case to strike down Texas’s onerous, medically unnecessary regulations and he has fought for women’s reproductive justice around the country, working with colleagues to oppose medically unnecessary restrictions on abortion in Ohio and Alabama. Additionally, he continuously fought against the Trump Administration’s attacks on women’s access to the full range of reproductive health care services and contraception options.
Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.