WBASNY Condemns the Passing of Texas Statute SB8 and the Failure of SCOTUS to Enjoin the Law from Taking Effect Pending Appeal

WBASNY Condemns the Passing of Texas Statute SB8 and the Failure of SCOTUS to Enjoin the Law from Taking Effect Pending Appeal

(New York, NY, Friday, September 3, 2021) – The Women’s Bar Association of the State of New York (WBASNY) strongly supports a women’s fundamental right to choose and make her own reproductive health decisions.  WBASNY expresses shock and concern over the failure by federal courts, including the U.S. Supreme Court, to recognize and protect the fundamental constitutional rights of women, by declining to issue a temporary injunction on the enforcement of Texas statute SB8.  The Texas law bans all abortions after six weeks of pregnancy, which is, under all applicable prior holdings of the U.S. Supreme Court, unconstitutional.   SB8 contains no exceptions for pregnancies that result from rape or incest, or where the pregnancy poses a risk to maternal health.

As a result of the U. S. Supreme Court’s failure to enjoin the implementation of the Texas statute SB8, there is effectively no right to legal abortion in Texas as of September 1, 2021.  The U.S. Supreme Court has knowingly deprived women and physicians in Texas of their fundamental constitutional rights to make reproductive health care choices, which rights have been recognized in nearly 50 years of constitutional jurisprudence, without even hearing arguments on the impact of the law or issues involved.

SB 8 and the refusal of the U.S. Supreme Court to enjoin its implementation constitutes a dangerous attack on vulnerable women, medical professionals who provide necessary medical care to women and the rights of women and their health care providers to make appropriate medical decisions.  Implementation of SB8 will have a particularly harsh impact on poor and younger women who do not have the financial ability to travel outside of Texas to obtain necessary reproductive health care, resulting in increased rates of death and serious harm to women due to known factors, including obtaining abortions by unqualified medical professionals, trying to self-induce abortions or as a result of maternal health risks.

WBASNY also expresses grave concern over the unprecedented and dangerous enforcement provision of SB8 that give individuals the right to sue medical providers, and any person who “assists” a woman in obtaining an abortion for “statutory money” damages of a minimum of $10,000 plus attorney’s fees and court costs. These provisions of SB8 violate the constitutional protections provided to medical professionals and clearly violate existing abortion law in the United States.   As Justices Breyer, Sotomayor and Kagan stated in their dissent to the 5-4 decision in Whole Women’s Health v. Jackson yesterday: “A state cannot delegate…a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”  Planned Parenthood of Central Mo. v.  Danforth, 428 U.S. 52, 69 (1976).   The Supreme Court has repeatedly made clear in the nearly 50 years of decisions since Roe that “since the State cannot regulate or proscribe abortion during the first stage …the State cannot delegate authority to any particular person …to prevent abortion  during that same period.”  Ibid  Justice Sotomayor presciently observed in her dissent yesterday in Whole Women’s Health v. Jackson  “In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbor’s medical procedures.”

In 2019 New York State enacted the Reproductive Health Care Act, which codified the protections of Roe v. Wade into state law and ensured access to safe, legal abortion in New York State, irrespective of changes to Federal law.   WBASNY again applauds the New York State legislature for providing protection for women and families in New York State of the essential rights to made reproductive health care decisions. WBASNY continues as a strong supporter of a woman’s fundamental right to make her own reproductive health decisions.

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The Women’s Bar Association of the State of New York (WBASNY) is the professional membership organization of choice for more than 4,000 attorneys throughout New York State, and the largest statewide women’s bar association in the country.  For four decades, WBASNY has been a singularly important resource for women lawyers, with professional networking, continuing legal education programming, leadership training, and advocacy for the rights of women, children, and families.  Through involvement with WBASNY’s 20 regional chapters and its 40-plus substantive law committees, WBASNY’s members collaborate with one another on a variety of issues and perform public and community service, in furtherance of its mission to promote the advancement of the status of women in society and women in the legal profession; to promote the fair and equal administration of justice; and to act as a unified voice for its members with respect to issues of statewide, national and international significance to women generally and women attorneys in particular. WBASNY holds United Nations NGO status with the U.N.’s Department of Public Information, and Special Consultative status in association with the U.N. Economic and Social Council (ECOSOC). WBASNY is also a founding member of the National Conference of Women’s Bar Associations.