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October 27, 2021

Amicus Brief Urges Court to Allow Challenges to Abortion Ban to Go Forward

Chicago  — Following the U.S. Supreme Court’s decision to hear two challenges to Texas’ unconstitutional six-week abortion ban, Senate Bill 8 (S.B. 8), Attorney General Kwame Raoul joined a coalition of 24 attorneys general in urging the court to uphold the rule of law by affirming the district court’s rulings. The district court’s rulings allowed the cases to proceed while blocking the ban from going into effect in the meantime.

“Texas’ unconstitutional abortion ban has endangered the lives of Texas residents and is a threat to anyone who so much as provides a patient with a ride to an abortion provider,” Raoul said. “Senate Bill 8 is unlawful, and its impact extends beyond the borders of Texas. I am urging the Supreme Court to uphold its own precedent and stop Texas’ blatantly unconstitutional law from continuing to harm residents seeking abortion care.”

The amicus brief, filed with the Supreme Court in United States of America v. State of Texas et al. and Whole Woman’s Health v. Jackson, calls on the court to refuse to allow Texas to evade judicial review of its blatantly unconstitutional ban, which is inflicting grave harm on people across Texas. The court will decide whether the challenges – brought by the United States and Texas abortion providers – can go forward.

According to the brief, S.B. 8 represents a “new and dangerous frontier” when it comes to state legislatures restricting or eliminating abortion access. As Raoul and other attorneys general have argued, S.B. 8 not only imposes a ban on almost all abortions in Texas – in open disregard of the Supreme Court’s longstanding precedent – but also attempts to thwart judicial review and insulate Texas from accountability by purporting to create only a private enforcement scheme. S.B. 8 requires Texas courts to award at least $10,000, as well as injunctive relief, to claimants who bring cases against anyone who provides an abortion in violation of S.B. 8 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.

As a result of the ban, abortion is completely unavailable to many people in Texas who do not even know they are pregnant yet. These patients now must travel out of state, which makes abortion for many people too difficult, too time-intensive and too costly. Consequently, many will now be forced to delay care or carry unwanted pregnancies to term. The harms caused by S.B. 8 are rippling well beyond Texas into other states, including Illinois, as people are forced to seek care elsewhere, overwhelming capacity in many places and threatening residents’ access to care.

In September, the coalition of attorneys general filed an amicus brief in support of the United States’ challenge to Texas’ ban on abortions, specifically the federal government’s motion for a preliminary injunction of the law. The U.S. District Court for the Western District of Texas granted the injunction Oct. 6 and blocked S.B. 8 while the court adjudicated the United States’ case. At Texas’ request, however, the U.S. Court of Appeals for the 5th Circuit stayed that injunction and allowed S.B. 8 to go back into effect during Texas’ appeal of the preliminary injunction.

The 5th Circuit also stayed all proceedings in the case brought by Texas abortion providers, while defendants sued in that case pursued an appeal of the District Court’s denial of their motion to dismiss the case. Both cases are now before the Supreme Court on writs of certiorari to the 5th Circuit before judgment and will be argued before the court on Nov. 1.

Joining Raoul in filing today’s brief are the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

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