Supreme Court says providers can keep challenging Texas abortion law, but SB 8 stands
The U.S. Supreme Court on Friday announced it would let Texas’ restrictive abortion law remain in place as abortion providers sue to stop the state policy.
The court had been weighing the Texas law that bans most abortions in the state, but not on the grounds of its constitutionality. Justices had before them questions related to the law’s civil enforcement mechanism and whether the federal government can sue to block the state law.
Senate Bill 8, the Texas law in question, bans abortions after cardiac activity is detected in a fetus, which is typically around 6 weeks of pregnancy, before many women know they are pregnant. Instead of relying on government enforcement of the law through criminal penalties, it uses civil enforcement procedures that allow almost anyone to sue a person who performs an abortion or “aids and abets” in the performance of an abortion after a “fetal heartbeat” is detected. Violating the law could result in damages of at least $10,000.
The court’s opinion was delivered by Justice Neil Gorsuch, who wrote that a pre-enforcement challenge to the Texas law is “permissible against some of the named defendants but not others.”
The court said abortion providers’ challenges against four licensing officials could carry on, but found that other officials such as state court clerks and Texas Attorney General Ken Paxton should be dismissed from litigation. The court also dismissed a challenge by the federal government.
SMU Law Professor Joanna Grossman expects the abortion providers’ challenge will return to federal district court and eventually the 5th Circuit Court of Appeals.
“The big picture way in which this is good for the providers, is their suit is still alive. There is a proper defendant and they can now seek relief in district court on the merits of their claim that this is an unconstitutional interference with abortion,” she said. “The way in which it’s a loss for those same plaintiffs is that...no immediate relief was issued — the Supreme Court did not issue a stay or block the law in any way.”
In a dissenting opinion, Justice Sonia Sotomayor said the Texas law is in “open defiance of this Court’s precedents.”
“The Court should have put an end to this madness months ago, before S.B. 8 first went into effect. It failed to do so then, and it fails again today,” she wrote.
Abortion providers, advocates respond to ruling
Plaintiffs on the lawsuit were not celebrating the Supreme Court’s Friday opinion, decrying the court’s decision to allow the Texas law to remain in place in a call with reporters.
Amy Hagstrom Miller, the founder and CEO of the case’s lead plaintiff Whole Woman’s Health, recently told the Star-Telegram clinics have had to turn away 70% to 80% of people seeking abortion procedures in light of Texas’ Senate Bill 8. The group has four clinics in Texas, including locations in Fort Worth and McKinney.
”With today’s Supreme Court decision allowing Senate Bill 8 to remain in effect, the cruelty and heartache that our staff and patients have endured will continue,” Hagstrom Miller said.
The law remaining in effect limits clinics’ sustainability, she said.
“No medical provider can keep operations running when they’re forced to see only 20% of the people who they are set up to serve,” Hagstrom Miller said. “We have been able to make ends meet from grants and donations and support from people all over the country. ... But staying open is not sustainable if this ban stays in effect much longer.”
Kamyon Conner, executive director of the Texas Equal Access Fund, called the ruling “infuriating and frustrating.” The fund helps provide Texans in the northern part of the state seeking abortion procedures with funding and is a petitioner on the case.
“I’m really having a lot of feelings about the fact that they seem to be totally disregarding what Texans seeking abortion are going through,” she said.
Seventy-five percent of the fund’s clients recently have had to go out of state for abortion procedures compared to 25% before the Texas law was implemented, she said.
Marc Hearron, senior counsel for the Center for Reproductive Rights, said Friday’s decision will have implications that “reverberate for years to come.”
“Today’s decision means that any state can prohibit the exercise of any constitutional right within that state’s borders, if it allows the prohibition to be enforced by private lawsuits, or at least that the federal courts are powerless to stop such a scheme,” he said. “Today it is abortion rights under attack. Tomorrow, I have no doubt we will see copycat abortion laws in other states, and after that any other fundamental right recognized by the Supreme Court can come under attack and federal courts will be handcuffed from doing anything to stop it.”
‘Victory for life and long overdue’
Texas Right to Life, an anti-abortion organization, celebrated the federal challenge’s dismissal, while acknowledging the court’s ruling “could indicate that they are skeptical of the private enforcement mechanism of the Texas Heartbeat Act.” A spokesperson for the group, Kimberlyn Schwartz, pledged to keep fighting for the law in lower courts.
“We are grateful that the Supreme Court practiced judicial restraint today and stopped the Biden administration’s pro-abortion campaign against the strongest Pro-Life law being enforced today,” Schwartz said in a statement.
Dallas-based Catholic Pro-Life Community was pleased with Friday’s outcome allowing Senate Bill 8 to remain in effect. The group’s communication director, Annette Kearns, said the law has “saved thousands of lives” while in effect.
“SB 8 represents an attempt by the Legislature to protect unborn babies from abortion even before Roe is overturned,” said Joe Pojman, Texas Alliance for Life’s executive director. “For now, that law remains in effect. Regardless of whether the courts allow that law to continue, we hope the Supreme Court will reverse the terrible Roe v. Wade precedent so states can completely protect unborn babies from the tragedy of abortion.”
The bill’s author, Mineola Republican Sen. Bryan Hughes, tweeted that the court’s decision is a “victory for life and long overdue.” The court heard the Texas cases on Nov. 2 after the law went into effect in September. The Supreme Court at the time didn’t step in to block its implementation.
“By leaving in place the Texas Heartbeat Law today, the Supreme Court affirmed two fundamental conservative principles: the sanctity of life and the sovereignty of states,” Hughes’ tweet reads.
What’s next for the Texas law and other states
Hearron, with the Center for Reproductive Rights, said the case will be returning to a lower court.
“Make no mistake, while the court allowed our legal challenge to proceed against some state licensing officials, an injunction against those officials will not block Texas’ bounty-hunting scheme,” he said.
Even if providers win in federal court, “the relief almost certainly won’t block future random people from suing them,” said Steve Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and CNN’s lead Supreme Court analyst, in a message to the Star-Telegram.
“The providers need relief that prevents future enforcement suits from being filed,” he said. “An order barring all state court clerks from filing those cases would suffice. An order against licensing officials barring them from taking adverse action against the doctors would not.”
Vladeck predicted a state court would offer the best chance of relief for abortion providers, but said that’s still a stretch given the time it would take and Texas’ all-Republican Supreme Court.
A state district court on Thursday issued a ruling that’s favorable for abortion providers when it declared the law’s enforcement mechanism unconstitutional, but the court left the law in place, according to the Austin American-Statesman.
“That decision is, we think, an important step in the right direction and certainly after the disappointing and devastating decision that we got from the U.S. Supreme Court, we will be looking more closely at the state court ruling (Thursday) night and options there going forward,” said Julie Murray, an attorney for Planned Parenthood, a plaintiff on the state case.
But she noted that the ruling in state court has already been appealed and that the case is being litigated only against Texas Right to Life and its associates.
“It is not, as the federal court case was, one in which we we are able to seek an injunction against all state court judges and clerks,” Murray said. “That option has been foreclosed in federal court today by the U.S. Supreme Court decision and it is not an option in the state court litigation.”
If the state case makes it up to the Texas Supreme Court, there could be an opinion issued with broader effect.
“But of course, that will take time,” she said. “The reality on the ground is that there are no easy answers here.”
SCOTUS also considering Mississippi abortion case
The Friday ruling comes just days after justices heard a separate abortion case out of Mississippi, Dobbs v. Jackson Women’s Health Organization. Members of the court indicated interest in scaling back or overturning Roe v. Wade, a case protecting abortion access, and Planned Parenthood v. Casey, which reaffirmed Roe’s earlier decision. A ruling in that case isn’t expected until around June.
It’s significant that the court didn’t halt Senate Bill 8’s enforcement, said SMU Adjunct Clinical Professor of Law Eric Cedillo. Blocking the Texas law could make the court appear inconsistent were it to scale back the time for abortion access in the summer, he said.
“If they were going to make a determination... that Dobbs was unconstitutional, I don’t see why they wouldn’t stop this case from going forward based on constitutionality,” Cedillo said.
If the court overturns Roe or Casey, Texas has a “trigger” law that would make it a felony to perform an abortion in the state, with limited medical exceptions. Texas is one of 12 states with similar laws on the books. Lawmakers passed Texas’ law during the regular legislative session. Lawmakers this year also approved a law restricting access to medication abortions.
“There is still a big difference between the technical rulings that we’ve gotten so far and an actual decision overruling Roe v. Wade, which is what would have to happen for this six-week ban to ultimately be upheld by the court,” said Julia Kaye, a staff attorney with the ACLU who was on the Friday call with reporters. “I think at this point, all eyes are on the Supreme Court’s decision in the Mississippi case.”
This story was originally published December 10, 2021 at 9:35 AM.
