SCOTx hears SB8 argument

I’ll be honest, I had not realized this was on the calendar.

The Texas Supreme Court got its first chance to weigh in on the state’s new abortion law Thursday, hearing arguments in a narrow challenge to the restrictions, which have blocked access to abortions after about six weeks of pregnancy for nearly six months.

This hearing before the nine-justice high court is an interim step in the ongoing federal lawsuit brought by abortion providers trying to challenge the law. The 5th U.S. Circuit Court of Appeals asked the Texas Supreme Court to weigh in on a question of state law before the appeals court proceeds with its own ruling in the case.

The law, passed as Senate Bill 8, is designed to evade judicial review, a goal at which it has so far been successful. It specifically precludes state officials from enforcing it, instead deputizing private citizens to bring civil lawsuits against anyone who “aids or abets” an abortion after cardiac activity is detected in an embryo, usually around six weeks of pregnancy.

Lawyers representing the abortion providers are trying to prove that the state itself actually will enforce the law, which would open a legal window for them to seek an injunction on some aspects of the law. They argued that the law is enforced by court clerks who docket the lawsuits, judges who hear them, the attorney general and others.

The U.S. Supreme Court threw out most of those arguments in a December ruling that allowed the law to remain in effect. The justices did allow one question to proceed, over whether state medical licensing officials play a role in enforcing the law.

Those agencies would potentially be responsible for disciplining or revoking the licenses of doctors, nurses and pharmacists who violate the law; an injunction would stop them from doing so, but would leave the crux of the law in place.


At Thursday’s hearing, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

The justices questioned whether doctors might be obligated by the rules of the state’s medical licensing board to report any lawsuits brought against them for violating the abortion law, and whether that would constitute state enforcement.

Stone said the board could simply make a rule saying that it has no role in enforcement, so even if a report was made, it would be precluded from taking further action, like revoking a doctor’s license.

That argument, and the narrowness of the challenge more generally, presented a problem for lawyers representing the abortion providers, who found themselves in the tricky position of arguing against themselves.

Their current argument is that the state’s enforcement authority, through medical licensing officials, contributes to the chilling effect on abortion providers. If the state Supreme Court decides that medical licensing officials do not have enforcement authority — or the boards add language to their rules confirming that — that chilling effect is lifted.

Justice Evan Young asked Marc Hearron, senior counsel for the Center for Reproductive Rights, whether that would be a win for the abortion providers.

“If you were to do that, that would, at a minimum, provide our clients some certainty,” Hearron said. “It would, however … essentially end our challenge.”

Without state enforcement, there is no one to bring a constitutional challenge against, and the law would remain in effect.


Abortion providers and advocates are fighting the law on several fronts, including in state court, where a judge in Austin declared the law unconstitutional. He did not enjoin the law from being enforced, though, and that ruling is being appealed.

It is possible that case will eventually return to these same chambers. The justices acknowledged that Thursday’s hearing is unlikely to be the last time they are asked to rule on this unprecedented new law.

Thursday’s case before the Texas Supreme Court is a question of whether the abortion providers can bring a federal “pre-enforcement” challenge.

If that option is foreclosed to them, one option would be to do what a San Antonio doctor did immediately after the law was passed: violate the law, get sued and challenge the statute on its merits in court.

See here, here, here, and here for some background. Perhaps the timing of this hearing on Thursday explains the forced-birthers’ move earlier in the week. I have no idea what SCOTx will do, and there’s no indication from them as to when they’ll do it, but I do know what they should do, and that’s what the federal district court did and would have done again if the Fifth Circuit hadn’t shredded normal practice to put this case before them: Issue a temporary restraining order against any SB8 activity until the matter is resolved in the courts. It’s ridiculous and infuriating how the Fifth Circuit and SCOTUS have played politics with this case. Do what is clearly the right thing under the law, and let the matter proceed from there. I don’t expect them to do this, but they should. The Chron and the Texas Signal have more.

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2 Responses to SCOTx hears SB8 argument

  1. Kibitzer Curiae says:


    The SCOTX is not in a position to grant a restraining order here, or an injunction for that matter.

    They have been asked a purported state-law question by the Fifth, and have graciously agreed to answer it. In this Kibitzer’s insignificant opinion, they should have rejected the certified overture summarily with the notation that the Texas Lege meant what they said and that their colleagues in the Minor Wisdom Center on Camp Street have adequate English reading comprehension themselves. Not to mention the benefit of erudite state-law readers who previously served in a supreme capacity in the Lone Star capital city.

    The short-form of the farmed-out question is this: Does exclusive private enforcement mean exclusive private enforcement?

    … and then, for good measure, the flip-side query: Does no public enforcement mean no public enforcement? Public, mind you, not pubic [sic] as in Judge Peeple’s MDL order ruling SB8 unconstitutional in part.

    You, the nonlawyerly public, may be forgiven if you think this is inane.

    Not to mention that a motions panel of the Fifth Circuit previously had no trouble with the statute read. Only 1 of 9 higher up in the pecking order, however, saw fit to agree publicly that exclusive means exclusive — ergo not nonexclusive — and that there is no doubt what the Texas Legislature meant in choosing its words.


    For general consumption, the oral argument was forgettable. It would have been more exciting to hear the Solicitor General and his “friend” on the other side expound on how many scintillas can sparkle on the cutting edge of modern (post-1984) jurisprudence.

    You see, it is seriously been contended, without proper credit to George Orwell, that exclusive really means not exclusive.

    As a matter of divining legislative intent from the text as written, no less.

    Say what?

    Plaintiffs’ challenge to SB 8 based on the Texas right to privacy is denied.

    A. Their contention that under Texas law there is a right to end a pregnancy before viability is denied.
    B. Their contention that there is a right under Texas law to keep patient medical
    records and decision-making out of pubic litigation is denied.

    Would the Hon. Jerry Buchmeyer [RIP] have et-cetera-ed this? Probably not, given the provenience.

    But this Kibitzer couldn’t resist … to add a note of levity to these weighty matters implicating the public vs. pubic subtype of the public vs. private split.

    Tags: satire, sophistry, absurdities of legalism, gravitas

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