The Texas Supreme Court dealt a final blow to abortion providers’ federal challenge to the state’s latest abortion restrictions Friday.
The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.
The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.
The law is designed to evade judicial review, a goal at which it has been largely successful so far. Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.
The U.S. Supreme Court disagreed with all of those arguments but one, allowing a challenge against the medical licensing officials to proceed. That case then went back to the 5th U.S. Circuit Court of Appeals, which sent it to the Texas Supreme Court to weigh in on.
In a hearing last month, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”
On Friday, the justices issued a ruling that seemed to agree with Stone’s “ordinary English interpretation” of the law.
“The Court concluded that Texas law does not authorize the state-agency executives to enforce the Act’s requirements, either directly or indirectly,” they wrote.
Abortion advocates, including those who brought this challenge, were unhappy with the ruling.
“We have been fighting this ban for six long months, but the courts have failed us,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. “The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans. Where will Texans go then?”
See here for the background and here for a copy of the ruling. I don’t have a good answer to Miller’s question. I don’t have much of anything to say because it’s hard not to feel numb. This is the best I can do:
#BREAKING: Texas Supreme Court answers question certified by the Fifth Circuit and unanimously holds that state licensing officials do *not* have the ability to enforce #SB8.
The gist: The providers’ suit against state defendants is now effectively over:
— Steve Vladeck (@steve_vladeck) 9:03 AM – 11 March 2022
There’s still (1) suits against individual defendants to prevent *them* from enforcing SB8; and (2) state court litigation. There’s also still DOJ’s suit vs. TX. But this is yet another ruling that keeps SB8 on the books, denying millions of Texans of their constitutional rights.
— Steve Vladeck (@steve_vladeck) 9:08 AM – 11 March 2022
See here and here for more on the Justice Department’s lawsuit, and here for more on the state lawsuit; you may recall that the judge ruled SB8 unconstitutional but declined to issue a statewide injunction. Maybe the plaintiffs can ask him to reconsider that, I dunno. Vladeck’s option 1 above involves individual providers getting injunctions against individual potential plaintiffs, which should be pursued as a stopgap but is obviously inadequate and unsustainable. That’s where we are today, and you can see why I don’t have much to add. The Chron, the Statesman, WFAA, The 19th, Reform Austin, and Daily Kos have more.