How Did the Supreme Court Just (Not) Act to Ban Abortion In Texas?


On Sept. 2, the Solomon Center for Health Law and Policy, the Gruber Program for Global Justice and Women’s Rights, the Program for the Study of Reproductive Justice, and Yale Health Law and Policy Society hosted a virtual discussion on Senate Bill 8 (SB8), the Texas law banning most abortions. The discussion covered what SB8 could mean for people seeking or providing abortions in Texas. The conversation also addressed the Supreme Court’s Sept. 1 ruling that allowed the law to go into effect, marking the first time the court has allowed such restrive abortion policy to be enacted.

The discussion featured the co-directors of the Yale Law School Reproductive Rights and Justice Project Clinic, Katherine Kraschel and Priscilla Smith ‘91. Kraschel, who is also Executive Director of the Solomon Center, first explained that SB8 prohibits physicians from providing abortions after cardiac activity can be detected, which usually occurs around the sixth week of pregnancy. The law expressly forbids enforcement by the State of Texas, instead allowing any person to bring a private civil action against anyone who aids or abets the provision of an abortion in violation of the law. 

Smith then discussed the ongoing litigation challenging the law. Abortion providers challenged the law, but the private enforcement mechanism frustrated attempts to block SB8 from taking effect. After a federal district court had denied a motion to dismiss, the defendants appealed that denial to the Fifth Circuit Court of Appeals. The Fifth Circuit also paused proceedings in the district court, thus preventing it from hearing a motion to preliminarily enjoin the law. As the Sept. 1 effective date rapidly approached, abortion providers sought the intervention of the Supreme Court. Providers asked the court to either stop the law from taking effect while the litigation continued, or at least allow the case to proceed in the district court so they could seek relief there. The law took effect without any action from the Supreme Court on Sept. 1. Late that night, the Supreme Court denied the abortion providers’ request. 

Smith delved into the issues of sovereign immunity and the doctrine of Ex Parte Young, as well as the Fifth Circuit’s particularly relevant precedent in this area. Finally, Kraschel addressed the significance of this ruling for people seeking or providing abortions in Texas and elsewhere. The event was extremely well attended, with many students eager to understand how this law had come to be and what would happen next. Smith encouraged attendees to think creatively about how to challenge the law.

The Solomon Center for Health Law and Policy at Yale Law School is the first of its kind to focus on the intersection of law and the governance, practice, and business of health care. The Center brings together leading experts and practitioners from the public and private sectors to address cutting-edge questions of health law and policy, and to train the next generation of top health lawyers, industry leaders, policymakers, and academics.