How the ERLC is advocating for life and religious liberty in appropriations

By / Dec 6

As the U.S. Congress reconvenes after the election, it must work to either complete appropriations work or pass another continuing resolution (CR) by the end of December 16. Congress previously passed a short-term CR in September to fund the government through December 16. 

On July 20, the U.S. House of Representatives passed a six-bill minibus, which included Transportation, and Housing and Urban Development; Agriculture, Rural Development, Food and Drug Administration; Energy and Water Development; Financial Services and General Government; Interior, Environment; and Military Construction, Veterans Affairs. Though all bills have been passed out of committee, the House has not yet taken action on Commerce, Justice, and Science; Defense; Homeland Security; Labor, Health and Human Services, Education; Legislative Branch, or State, Foreign Operations.

The Senate has also released but not yet taken up its own version of these bills. If passed, these bills will have to be reconciled with the House versions. 

Southern Baptists affirm the full dignity of every human being and that every life is  worthy of protection, beginning with the unborn. We believe life begins at conception and that abortion denies precious human lives both personhood and protection. Scripture is clear that every person is made in the image of God and his knowledge of each of us even precedes the creative act of conception (Jer. 1:5; Psalm 139:13). At the 2018 Annual Meeting of the Southern Baptist Convention, the messengers passed a resolution to “reaffirm the sacredness and full dignity and worthiness of respect and Christian love for every single human being, without any reservation.”  

The ERLC is committed to conscience protection policies because they uphold two of our most closely held convictions. First, we work to protect the consciences of our neighbors because we believe religious freedom is an inalienable human right, thankfully secured as the first freedom in the Bill of Rights. Second, protecting healthcare workers from the coercive power of the profit-seeking, on-demand abortion industry is a pro-life responsibility.

The ERLC opposes appropriations riders that deny religious freedom and conscience  protections to millions of Americans. Efforts to codify sexual orientation and gender identity as protected classes under federal law have explicitly included attempts to roll back religious freedom and conscience protections. Many of the riders discussed below do the same. As the ERLC has long maintained, a government that is able to pave over the conscience is one that has the unlimited ability to steamroll dissent on any issue.

The FY2023 appropriations bills are troubling because they removes several longstanding pro-life riders from the budget. Just as last year, the Hyde Amendment has not been included in the Labor-HHS appropriations bill. The Hyde Amendment prevents Medicaid from covering the cost of abortion. At the 2021 Annual Meeting of the Southern Baptist Convention, messengers unanimously approved a resolution condemning efforts to strip Hyde from any federal appropriations bills and called upon Congress to uphold all pro-life riders.

Additionally, the appropriations bills removed the Weldon Amendment for only the second time since 2005. The amendment protects the rights of conscience for healthcare professionals and institutions by preventing HHS from denying funding to recipients that refuse to provide, pay for or refer for abortion. The budget would also prohibit any president from reinstituting the Mexico City Policy, reestablished and expanded by President Donald Trump, as the Protecting Life in Global Health Assistance policy.

Though excluded from the initially released bills last year, these pro-life and conscience protection riders were ultimately included in the final FY2022 appropriations package. It is our hope that the same will happen this year.

ERLC’s president, Brent Leatherwood, sent House and Senate leadership a letter urging them to defend protections against federal funds being used for abortion and to ensure that pro-life spending riders are approved in all spending legislation passed in the 117th Congress. He also urged Congress to remove harmful provisions that would exclude people of faith from serving the most vulnerable. 

Each year, the ERLC is actively engaged in the appropriations process, working alongside committee and leadership offices to ensure that important pro-life, religious liberty, and conscience protections are included. The ERLC will continue to advocate for these pro-life provisions and other legislative measures that reflect God’s gracious love for every human life. You can read the full list of our concerns as well as our letter to Senate leadership below.

ERLC opposes the pro-abortion Women’s Health Protection Act of 2022

By / May 9

Southern Baptists affirm that every life is worthy of protection, beginning with the unborn. We believe life begins at conception and that abortion denies precious human lives both personhood and protection. Scripture is clear that every person is made in the image of God — including the unborn — and his knowledge of the unborn even precedes the creative act of conception (Jeremiah 1:5; Psalm 139:13).

Southern Baptists affirm that every human is created in the image of God. As stated in a 2021 resolution of the Southern Baptist Convention, the Bible “clearly and unequivocally affirms the sanctity of every human life made in God’s image (Genesis 1:27; 9:6), a truth to which Christians in every century have testified and are called to bear witness in every age and in every sphere of life; and Further, the Convention’s Baptist Faith & Message affirms that “children, from the moment of conception, are a blessing and heritage from the Lord” and calls us to “speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death.”

The Women’s Health Protection Act of 2022 removes all restrictions and limits on abortion and allows for abortion up to the point of birth. Additionally, this bill removes all pro-life protections at the federal and state levels and eliminates a state’s ability to legislate on abortion. This bill also fails to protect the consciences of American taxpayers and would force taxpayer dollars to pay for abortions.

Abortion is not healthcare. If human dignity is given to each person when created in the womb, then abortion is not only an assault on the image of God but also irreparable harm on a vulnerable life. We believe abortion denies precious human lives both personhood and protection, and therefore cannot be considered as healthcare.

The ERLC strongly opposed the Women’s Health Protection Act of 2022. This is one of the most pro-abortion bills to ever pass the U.S. House of Representatives, and we urge the Senate not to pass this harmful bill. It would put thousands of vulnerable, preborn lives at risk and steamroll over the the consciences of millions of Americans who do not wish to pay for or be compelled to provide abortions.

Sanctity of Human Life Sunday bulletin insert

By / Jan 4

Free, downloadable bulletin insert for use by your church on Sanctity of Human Life Sunday.

To see additional SBC event dates, visit

Human Dignity Around the World

By / Jan 3

A prayer guide in light of Dobbs v. Jackson Women’s Health Organization

By / Dec 1

Collectively, we have served the pregnancy center movement for over four decades. We believe, unapologetically, that this is our life’s work. We are amazed that God has called both of us, separately, to serve women facing unplanned pregnancies in Middle and East Tennessee. We partner together with thousands of others across the country as we seek to see women served, babies saved, and abortion ended. 

The coming weeks are going to play a key role in determining where our country is headed on the issue of life and abortion, and it is essential that Christians go to God in prayer. 

Laura’s story 

But first, Laura wanted to share her own calling with you to help us get into the proper frame of mind. Almost 40 years ago I, Laura, was a 25-year-old mom who stayed at home with my first child. Abortion had never entered my world. I didn’t think about it, much less pray about it. That changed when I saw a news story about dumpsters full of late-term aborted babies in California. Grown men, sanitation workers who had been tasked with cleaning them out, were speechless and haunted by what they had seen. I was instantly overcome with grief, and I became vocal about it. My small group started praying about it. God led us to start a pregnancy support center in our community. We opened our doors 36 years ago this January.

Life went on, I had more babies and settled into raising my children. My husband and I continued to be active at the center as volunteers, board members, banquet directors, and donors. But I didn’t give much thought to the possibility of abortion ending. We were just working hard to offer an alternative.

Then, 14 years ago, I was asked to become the executive director of our center. Suddenly, I was involved in this “issue” full time. It became my passion and my life’s calling. My girls were grown, and my son was in high school. I poured myself into making sure our center was thriving and that our clients received the support and love they needed — and that we were telling them about the abundant life that Jesus wants to give them.

This story may sound familiar to some of you as you contemplate your own calling and involvement in the life issue. We know that many felt this same way back in 2019 when states around our country passed laws seeking to dehumanize babies in the womb or even, in the case of New York, actually lit up the night sky to celebrate a recent law paving the way for more abortions in their state. We took phone calls from supporters and volunteers seeking to help us serve at our centers as we had a front-row seat to a stirring and awakening of God’s people on this issue of life. This is what we want you to have in mind as you prepare to pray for the Dobbs case. 

How to pray in light of Dobbs

Today, the Supreme Court will hear oral arguments in a case out of Mississippi, Dobbs v. Jackson Women’s Health Organization. You can find an explainer on the implications of this case here. Our goal in this piece is not to deliberate the intricacies of this case or to debate the legalese of Dobbs. Instead, as leaders in the pregnancy center movement, we want to encourage you to spend some time over the next few weeks and months in prayer for the justices, the attorneys, the organizations on the ground serving women, the unborn, and the women facing unplanned pregnancies who are walking through the doors of close to 3,000 pregnancy centers every single day. 

So, if you would allow us, we would like to point out ways you can be praying. This guide does not provide an exhaustive list of needs, but we believe that it is a great launching point for God’s people to come together in prayer as we seek the end of abortion in our country and around our globe. 

Justices: Please pray for the justices on the Court. Their job is one of ever-growing responsibility as they attempt to navigate the muddy waters of legislation, rights, public opinion, and the Constitution. It is easy for us to pile on when decisions don’t go our way, but it is far harder for us to realize that these men and women have families, friends, and normal life routines just like we do. Pray the nine justices will have courage, wisdom, and grace.

Attorneys: There are a number of attorneys and attorneys general who have prepared for this case. It is not lost on us that this case is a hinge point for our republic and for the rights of the unborn moving forward. We can’t imagine the pressure these men and women are feeling as they deliver arguments for which they have prepared and studied hard. Please pray for their peace, courage, and stamina. 

Pregnancy centers: God’s Word tells us in Romans 12:21, “Do not be overcome with evil, but overcome evil with good.” There are thousands of pregnancy centers across the United States that are filled with people who work to overcome this evil with good. Pray for the staff and volunteers that populate these centers day in and day out. Pray for the nurses who view these precious lives via ultrasound. Pray for strength and stamina for these selfless men and women who choose to serve during these very trying times and face real spiritual warfare. 

The unborn: Pray for these unborn babies. These lives represent image-bearers deserving of love, life, and an opportunity. Pray that the images we see on the ultrasound scans prompt action and heart change. Pray that these lives are given the care they need and deserve.  

Women facing unplanned pregnancies: Pray for the women facing unplanned pregnancies. Pray that obstacles would be moved out of their way as they seek to choose life. Pray that abortion clinics close their doors and these women find their way to the door of a pregnancy center. Pray for healing, healthy relationships, and a desire to be an incredible mom. Pray for support from a church, friends, or family members. 

We take prayer seriously at Hope Resource Center in Knoxville, Tennessee, and at Portico in Murfreesboro, Tennessee. We start every day calling out to our God for his loving hand as we serve his image-bearers, both in and out of the womb. We don’t know how God is going to answer any of these prayers, but we believe that just as David boldly stepped up to confront Goliath in his day, we are called to boldly confront abortion in America in our day. God is calling us to pray courageous prayers. Will you join us in this call to action? We are grateful for your support and are honored to serve alongside you for the work of the gospel and for life. 

Herbie Newell on National Adoption Month

By / Nov 15

This week, Chelsea Sobolik sits down with Herbie Newell of Lifeline Children’s Services to discuss National Adoption Month, how the church can care for vulnerable children, and how we can be preparing for a post-Roe world.

Guest Biography

Herbie Newell is the President/Executive Director of Lifeline Children’s Services and it’s ministry arms including (un)adopted, Crossings, and Lifeline Village. Herbie holds a Master’s degree in Accounting from Samford University. He joined the Lifeline staff in 2003 as Executive Director. From January 2004 to December 2008, he served as the president of the Alabama Adoption Coalition. Herbie was chosen as a Hague Intercountry Adoption evaluator and team leader by the Council of Accreditation and serves in that capacity currently. Under Herbie’s leadership, Lifeline has increased the international outreach to 23 countries, helped Lifeline attain membership in the ECFA (Evangelical Council on Financial Accountability), and led the creation of foster care ministry. Having witnessed the plight of older orphans on many trips overseas, Herbie’s burden for the fatherless was a catalyst for starting (un)adopted during 2009. He worked with WAKM Companies, LLC, a prominent accounting firm, for many years as an independent auditor before being led to Lifeline.  He and his wife, Ashley, live in Birmingham, Alabama, and are parents to son, Caleb, and daughters Adelynn and Emily.

Resources from the Conversation

How will local churches respond in light of SB8?

By / Nov 4

Through my work with Texas Baptist Christian Life Commission, I have shared publicly what it’s like to be offered a medically necessary abortion at 25 weeks pregnant. And I have shared what it’s like to walk with my sister through her grief over an abortion she experienced alone. 

I have had a specific vantage point to observe some of the many issues involved. The choice to abort never occurs in a vacuum, and if Christians want to have a true impact on the issue of abortion, we must carefully work to eliminate why abortion seems the best choice, not merely make it an illegal choice. 

How local churches can respond

On Sept. 1, 2021, my home, Texas, became as close as the United States has seen in decades to a state where abortion is banned. The law that enabled this ban, SB 8 (or the Texas Heartbeat bill), is now under consideration by the Supreme Court. 

Our gospel witness demands we prepare to rise to this occasion as a watching world looks to Texas to see how churches will respond if the laws they’ve so vocally called for and supported become a reality. 

The good news is there is not a need to reinvent the wheel. The crisis pregnancy ministries that have worked tirelessly before now continue to be the boots on the ground. They are strategic partners for churches wanting to do more. Churches are uniquely capable and equipped to be able to help alleviate much of the reasons women believe abortion is the best option. With more churches now considering and looking to be a positive resource for women, there are several paths forward: 

Expanding network currency. Churches wanting to be more involved in crisis pregnancy ministries can begin by partnering with established organizations in great need of more resources. This could mean financial support (which is sorely needed), but it could also mean helping connect the passions, interests, and skills of the church members. Although resources are not one-size-fits-all, most Dallas and Fort Worth based crisis pregnancy centers share a need for help with the following: 

  • Mental health 
  • Language and communication (especially bilingual skills)  
  • Sewing skills (for blankets, socks, etc.)
  • Childcare opportunities (VBS/Parent’s night out/stay & plays could all be great resources for pregnancy centers to share with clients).
  • GED/ESL opportunities 
  • Print supplies/office resources 

Help make easier on-ramps to existing ministries. The problem is not a lack of resources; it is connecting the right resources with the people who need them. Churches are crucial ministry partners for many pregnancy centers. This is an opportunity for churches to strengthen their communication efforts with pregnancy ministries. It is especially helpful to provide welcoming points of entrance into the church beyond a Sunday morning service, which can be threatening and overwhelming to a woman facing a difficult situation. If your church has childcare nights, or evening sporting events, or other community/relationship-building events, those would be an ideal opportunity to invite people who are in need of community and Christ’s love right now. 

Support the boots on the ground: Oswald Chambers once said, “Prayer does not fit us for the greater works; prayer is the greater work.”  Pray for your local pregnancy centers, and let them know. These ministries have been and will continue to serve, love, and minister to women and children, but they are also on the receiving end of much anger, misinformation, and hostility as the Texas bill works its way through the legal system. Many of them are tired and in need of encouragement. While SB 8 continues to attract national attention, our centers need our vocal prayer and support. 

Some helpful guiding principles

The future of the Texas Heartbeat Bill is yet to be determined. However, it is my firm belief that churches should begin envisioning now what a life without Roe v. Wade could look like and work toward that. At the Christian Life Commission, we have committed to following Micah 6:8 to be our guiding reference as we navigate public policy, culture, and the building of the kingdom of God. Working toward a world post-Roe, the principles of Micah help point us in the right direction. “He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love kindness and to walk humbly with your God” (Micah 6:8).

Act justly: As believers, we confidently stand behind the truth of the dignity and worth of the unborn. Throughout Scripture we see God’s calling upon his people to care for and protect the marginalized and the vulnerable. This calling to justice extends to the unborn. We care deeply about their protection and believe to act justly means to advocate for their dignity and rights. 

Love kindness: There is plenty of space in Christianity for conviction and compassion. It is good to have conviction and passion for the vulnerable among us. But that should never stand apart from people who are hurting and also need compassion — to listen to their cries and needs — and follow the example of James 2 by showing our faith through our works. We must creatively pool resources to meet the moment of need in the mother’s life. The banning of abortion will not undo the host of issues that culminate in the choice to abort. A Christian response ought to be marked by true kindness. 

Walk humbly: Pride is never a good look in the life of the believer. As we craft our responses and attitudes toward this issue, a haughty spirit over the victory against abortion is not the way forward. We celebrate truth and justice, but we also weep with those who weep. The celebration of progress within the pro-life cause should spur us on to love and good deeds. If the fruit of our celebration is the humiliation and pain of others, we have done it incorrectly. It is crucial to remember that while laws may help regulate and provide protection for the vulnerable, the causes which lead up to abortion will still be with us. In humility, we ought to ask God for wisdom on how to help end abortion by working to alleviate it as the seemingly better choice.

As we move toward the possible reality of a post-Roe world, may God help us exemplify the truth and grace of Jesus and uphold the dignity of every life we encounter.

Explainer: U.S. Supreme Court vacates ruling requiring insurance plans to cover abortions

By / Nov 4

On Nov. 1, the U.S. Supreme Court vacated a federal court’s ruling that “upheld a New York regulation requiring health insurance plans to cover abortions.” Citing a recently decided case, the Supreme Court sent the Roman Catholic Diocese of Albany v. Emami court case back for reconsideration in light of the unanimous decision in Fulton v. Philadelphia, a case that “could affect the lower court’s thinking on the issue.”

It was due to the court’s Fulton decision, a ruling granting faith-based foster care and adoption providers the right to “continue serving children and families according to their convictions,” that the ERLC joined several other religious entities in signing a brief, petitioning the Supreme Court for a writ of certiorari to the Supreme Court of New York. 

With the case being remanded, it is our hope and prayer that the lower court will arrive at a satisfactory decision by acknowledging and upholding the Constitutional rights of people of religious faith.

What is this case about?

As stated in a petition submitted in April 2021, “In 2017, New York promulgated a regulation mandating that employer health insurance plans cover abortions.” In response to this mandate, “a group of religious organizations sued, arguing that the mandate violates the Constitution by imposing “severe burdens on their religious exercise.”

Though there is a religious exemption built into New York’s 2017 regulation, those opposed to the mandate argue, in effect, that the exemption is too narrow; it “shields some churches but not other religious organizations.” While religious groups whose purpose is to “employ and serve primarily people of the same religion” are granted an exemption, those with a “broader religious mission” or broader hiring and service policies are not. In fact, based on the stated qualifications, it is likely that “few religious employers” will actually qualify for exemption. 

Additionally, while the New York regulation states “that employer-sponsored healthcare plans cannot ‘limit or exclude coverage for abortions that are medically necessary,’ the term medically necessary goes largely undefined. Presumably, according to what’s suggested in official guidance documents, “the State intends for the term to include not only ‘abortions in cases of rape, incest or fetal malformation,” but also “abortions of babies afflicted with Down Syndrome and other maladies.’” In other words, while the parameters of the religious exemption are especially narrow, the parameters of what’s defined as a “medically necessary” abortion are unconscionably broad. 

So, not only is this case concerned with the free exercise of one’s religious faith, it is concerned, likewise, with the issue of life. 

Why is this case significant?

The New York Supreme Court’s initial ruling is a clear and egregious violation of religious liberty, and the decision will have implications for religious groups, including for Southern Baptists. 

As Becket Law stated, 

“Other religious groups targeted by the abortion mandate include the Carmelite Sisters for the Aged and Infirm, the First Bible Baptist Church of Hilton, New York, and Catholic Charities, the Catholic Church’s charitable arm, which all joined forces against the abortion mandate. What all of these diverse groups have in common is that they seek to serve all people in their communities: the First Bible Baptist Church conducts outreach via its local youth ministry, Catholic Charities provides adoption and maternity services to its community, and the Carmelite Sisters operate the Teresian Nursing Home in Albany. But because they offer these services to people in their communities regardless of their faith background, the state holds that they must offer abortion services in their insurance plans—or else.”

The ERLC submitted an amicus brief on this case, and as stated in the brief, “Unless reviewed, it [the court’s decision] will undermine the crucial principle of religious autonomy.” In other words, religious freedom is at stake.The government has no right to force churches and religious ministries to violate their consciences and pay for abortions. 

What happens next?

In this case, the [U.S.] Supreme Court chose not to hear the legal challenge, although Justices Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch voted in favor of reviewing it. The case instead will be reviewed by the lower court in light of Fulton.” The case will now be sent down to the New York Court of Appeals for hearing. 

As the lower courts reconsider this case, we hope they will do so acknowledging that, like the justices agreed on in Fulton, once a government grants some exceptions, they cannot deny exemptions for religious objectors. The ERLC will continue to monitor all developments related to this case and others important to religious liberty. We will always advocate for this first freedom in the courts, on Capitol Hill, and in the culture.

How Christian nonprofits are leading international orphan care

By / Nov 1

Of those most tragically affected by the COVID-19 pandemic, the 1.5 million children who lost parents or grandparents worldwide may be the most heartbreaking. In the wake of such loss, international child welfare advocates have bolstered efforts to care for these newly orphaned children. 

Many of those advocates are Christian nonprofit organizations like Faith to Action Initiative (FAI) and Lifeline Children’s Services. Both groups exist to resource churches and communities with what they need to help orphans and vulnerable children in the name of Jesus. 

“COVID has had an incredibly horrific impact on families and children around the world,” Herbie Newell, president of Lifeline Children’s Services. “It’s multiplied poverty, it’s multiplied helplessness and hopelessness.” 

A collaborative movement to care for children

Thankfully, there is a collaborative movement afoot to provide the best care possible. Recently, UNICEF held an annual event in recognition of the 1989 UN Convention on the Rights of the Child. More than 30 years ago, world leaders committed to an international agreement granting children the same human rights as adults. It wasn’t until 2019, however, that the group signed and adopted a resolution that committed to prioritizing family-based care over institutionalized care for children. 

At the event, FAI presented a letter urging governments to acknowledge the significant role Christian nonprofits play in caring for orphans and to include them in care reform efforts. A report from the Better Care Network found that one of the largest groups supporting orphanages abroad are evangelical, Protestant churches. 

Despite that reality, said FAI’s Executive Director Elli Oswald, at times it can feel as if UN reforms are more like mandates than collaborative solutions. “We think it’s important for Christians to share their experiences,” said Oswald. “They [can then] build their ownership over changes that need to happen.” 

In the letter, FAI proposed that countries be required to regulate the funding investment from Christian nonprofits, to ensure their contributions go exclusively toward their family-based care goals. 

A move toward family-based care

The 2019 resolution and move to recognize Christian leadership in orphan care is even more important today, as the unanticipated outcome of a worldwide pandemic left so many without nuclear families. A move toward family-based care on an international level -— through economic support, kinship care, foster care, and adoption — will help create better results for children, who fare better in such environments. 

In the United States, the orphanage is a thing of the past since the 1950s and 60s transition to almost exclusively government-funded foster care as the accepted model of care. But these institutions are still prevalent in many countries around the world. To be clear, orphanages are often the best care available — and are certainly important for children without other options — but institutional care isn’t optimal. 

FAI and other groups ultimately hope to create family-based care options everywhere. In 2019, all member states in the UN committed to moving toward this goal, but the process isn’t quick or easy. While governments have been amenable to working with faith-based organizations, FAI and its coalitions, including World Vision, Bethany Christian Services, and Catholic Relief Services, would like to see Christians get a more prominent seat at the table. In doing so, they could shift reforms to more gospel-centered priorities rooted in the family model God created from day 1. 

Part of this shift, said Oswald, would include reforms to economically and strategically equip vulnerable families before orphancare is needed. Many so-called orphaned children in third-world countries actually have at least one living parent. But because social systems don’t offer them the economic stability they need to continue parenting through struggle, kids often end up institutionalized. Part of orphancare reform would include putting money toward in-tact families who just need a little help to survive hard times. 

Centralizing Christian organizations in conversations about orphancare matters greatly. It puts the gospel front and center and amplifies the voices of those most committed to caring for children with their pocket books and their lives. The Bible calls all Christians to “look after orphans” (James 1:27) — and it’s clear from the Creation story that the family unit is God’s intent for the flourishing of all people (Genesis 1). 

“It’s vitally important that the Church work together to ensure that institutions are a last resort for vulnerable children who don’t have a family,” said Newell. “Adoption is still a great way to live out the gospel, and we’re grateful to work with so many loving Christian families to facilitate that.” 

With so many divisive issues on the line across the world, there’s one that nearly everyone can agree on: keeping children around the world safe, housed, fed, and loved. There is no perfect way to ensure this for every child, but Christian organizations like FAI, Lifeline, and others are doing all they can to make it so for as many children as possible. 

Explainer: Supreme Court expedites hearing on abortion cases

By / Oct 29

Last Friday the U.S. Supreme Court handed down a pair of orders on Texas’ Senate Bill 8 (SB 8), a Texas law that bans abortion once a fetal heartbeat is detected, which typically occurs anywhere between five and eight weeks into a pregnancy. The orders concern the case Whole Woman’s Health v. Jackson, a lawsuit brought by abortion providers, and the case United States v. Texas, which was filed by President Biden’s administration. 

The court gave the parties in the case until this past Wednesday to file their briefs. The cases are set for oral argument on Monday, November 1, 2021. This is an unusually expedited schedule, which signals the Court is eager to resolve the issue of whether these cases can be brought by the abortion clinics and the Biden administration. 

Who decides whether a case will be expedited by the Court?

In general, justices of the Supreme Court have sole discretion about which cases they will hear. No one—including Congress or the president—can force them to review a case that has been decided by an appeals court. There is also nothing that tells the justices how they must decide which cases they will take, so they rely on custom.

The Supreme Court has adopted the custom known as the “rule of four”—a case will be reviewed by the Court if four of the nine justices so decide. In the case of Ferguson v. Lines (1957), Justice Felix Frankfurter explained the rule of four:

“The ‘rule of four’ is not a command of Congress. It is a working rule devised by the Court as a practical mode of determining that a case is deserving of review, the theory being that if four Justices find that a legal question of general importance is raised, that is ample proof that the question has such importance. This is a fair enough rule of thumb on the assumption that four Justices find such importance on an individualized screening of the cases sought to be reviewed.”

If four justices decide they will take a case, they issue a writ of certiorari, an order issued by the Supreme Court directing the lower court to transmit records for a case that it will hear on appeal. The justices tend to only accept cases that will affect the entire country, rather than just the individuals involved, or that clarify legal issues that are of constitutional significance.

The Court hears oral arguments in cases from October through April, and are usually released beginning in June. All opinions of the Court are, typically, handed down by the last day of the Court’s term (the day in late June/early July when the Court recesses for the summer). With the exception of this deadline, there are no rules concerning when decisions must be released.

What are the issues the Court is looking at with SB 8?

The 1908 case of Ex Parte Young ruled that plaintiffs in lawsuits can seek injunctions against government officials charged with enforcing potentially unconstitutional laws. Based on this precedent, abortion providers attempeted to sue a numer of state officials in Texas for enforcing SB 8. But SB 8 was intentionally written so that the enforcement mechanism would be civil lawsuits brought by private citizens. 

The State of Texas therefore claims that it has no role in enforcement, and thus state officials cannot be sued. Since no state officer can enforce the law, it is unclear whether anyone can be sued to block the law from taking effect. 

The question the Supreme Court is being asked to consider in Whole Woman’s Health v. Jackson  is whether a state can insulate from federal-court review a law that prohibits the exercise of an established constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

The question the Supreme Court is being asked to consider in United States v. Texas is whether the Biden administration may bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit Texas Senate Bill 8 from being enforced.

How does this affect SB 8?

It doesn’t—at least for now. As Justice Sotomayor lamented in her dissent when the recent order was handed down, the Court has once again decided not to block SB 8 from being enforced. The law will remain in effect at least until a decision is handed down on these pending cases. 

How soon could the Court rule on this issue with SB 8?

The Court could hand down a ruling within a few weeks at the earliest. At the latest, the Court could decide to hold the ruling till the end of its term in late June or early July. 

How does this affect the future of abortion?

Although SB 8 has received the most attention lately, it is not the primary case that will determine the future of abortion in America. The Supreme Court will also be hearing the state of Mississippi’s petition in the case of Dobbs v. Jackson Women’s Health Organization. That case involves a 2018 law passed in Mississippi called the Gestational Age Act, which allows abortions after 15 weeks of gestational age only in medical emergencies or instances of severe fetal abnormality.

While the law has been blocked by lower courts as inconsistent with current precedent related to abortion, the court agreed to take up the question of whether all pre-viability prohibitions on elective abortions are unconstitutional. If pre-viability prohibitions are declared constitutional, then lawmakers could essentially overturn Roe v. Wade and make laws such as SB 8 unnecessary.