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In 2021, Texas enacted an abortion statute, SB8, stating “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” SB8’s prohibition applies broadly against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” The law’s design is unprecedented, enforced solely by private lawsuits, providing damages of $10,000 or more for each abortion. SB8 prohibits government enforcement, with the explicit intent of preventing federal judicial review. SB8 clearly violates current Supreme Court precedent creating a constitutional right to abortion before fetal viability.

Private litigants and the Justice Department launched a series of lawsuits in federal court to enjoin the law. On December 10, 2021, the Supreme Court, 8-1, in a fractured set of opinions, ruled that abortion providers may seek to enjoin a narrow group of government officials and employees, but the justices ruled against Justice Department litigation. Pending lower court decisions, the Court let SB8 stand despite the clear fact it violates Roe v. Wade.

This article explores majority’s reasoning, what it means for future enforcement of SB8 and access to abortion in Texas, and what may happen next in this case and related litigation, including the Supreme Court’s upcoming ruling in Dobbs v Jackson Women’s Health Organization. It also examines the decision’s implications for other constitutional rights beyond abortion.

Publication Citation

The Journal of the American Medical Association, published online January 28, 2022, at E1-E2.