10/27/2021 | Press release | Distributed by Public on 10/27/2021 12:45
Commonwealth of Virginia
Office of the Attorney General
202 North Ninth Street
For media inquiries only, contact:
Charlotte Gomer, Director of Communication
Mobile: (804) 512-2552
~ Herring files amicus brief urging SCOTUS to block Texas' blatantly unconstitutional abortion ban and allow challenges to abortion ban to go forward ~
RICHMOND (October 27, 2021)- Attorney General Mark R. Herring is continuing his fight to block Texas' blatantly unconstitutional abortion ban, Senate Bill 8 (S.B. 8), by filing an amicus brief in front of the U.S. Supreme Court. Attorney General Herring joins 24 attorneys general in filing an amicus brief with the Supreme Court in the cases of United States of America v. State of Texas et al., and Whole Woman's Health et al. v. Jackson et al. that calls on the Court to rule that challenges brought by the United States and Texas abortion providers to S.B. 8 can go forward. Today's brief argues that Texas should not be allowed to evade judicial review of its unconstitutional ban by purporting to grant enforcement authority solely to private bounty-hunters. The brief further argues that S.B. 8 is blatantly unconstitutional under binding Supreme Court precedent and is causing significant harm to patients in and outside of Texas.
Last week, Attorney General Herring renewed his commitment to fighting Texas' unconstitutional abortion ban when the Supreme Court announced that it would hear two cases involving the ban on Monday, November 1st.
"The Supreme Court must do the right thing and uphold a fifty-year precedent protecting the constitutional right to an abortion by striking down Texas' blatantly unconstitutional abortion ban once and for all," said Attorney General Herring. "Since September, when this illegal law first went into effect, women in Texas and around the country have suffered, having their rights infringed upon and their most important and personal health decisions impacted. Texas cannot be allowed to get away with passing a disgusting unconstitutional abortion ban that not only rewards vigilantes with bounties for turning in women and doctors, but was written explicitly to avoid any kind of judicial review.
"From the outset, I have been in court fighting back against this illegal abortion ban, and I want to assure all Virginians that I will never back down. I will always stand with Virginia women and do everything I can to protect the constitutional right to an abortion."
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 the 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.
Today, 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, 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 residents' access to care. In New Mexico, in particular, all abortion clinics were reportedly booked for weeks just one day after S.B. 8 went into effect. And patients traveling from Texas have accounted for close to a third of the total abortion patients in New Mexico since September 1.
Similar to the brief filed by Attorney General Herring and his colleagues earlier this month in the Supreme Court, today's filing 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.
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 United States' motion for a preliminary injunction of the law. On Oct. 6, the U.S. District Court for the Western District of Texas granted the injunction 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 Fifth Circuit stayed that injunction and allowed S.B. 8 to go back into effect during Texas' appeal of the preliminary injunction.
The Fifth Circuit also stayed all proceedings in the case brought by Texas abortion providers, while defendants sued in that case pursued an appeal from 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 Fifth Circuit before judgment and will be argued before the Court on November 1.
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, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.
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