SCOTx re-enables statewide abortion ban


The Texas Supreme Court has blocked a lower court order that had allowed clinics in the state to continue performing abortions even after the U.S. Supreme Court overturned it’s landmark 1973 ruling that confirmed a constitutional right to abortion.

It was not immediately clear whether the clinics in Texas that resumed performing abortions just days ago would halt services again following the ruling late Friday night. A hearing is scheduled for later this month.

The whiplash of Texas clinics turning away patients, rescheduling them, and now potentially canceling appointments again — all in the span of a week — illustrates the confusion and scrambling that has taken place across the country since Roe v. Wade was overturned.

An order by a Houston judge on Tuesday had reassured some clinics they could temporarily resume abortions up to six weeks into pregnancy. Texas Attorney General Ken Paxton quickly asked the state’s highest court, which is stocked with nine Republican justices, to temporarily put that order on hold.

“These laws are confusing, unnecessary, and cruel,” said Marc Hearron, attorney for the Center for Reproductive Rights, after the order was issued Friday night.

Clinics in Texas — a state of nearly 30 million people — stopped performing abortions after the U.S. Supreme Court last week overturned Roe v. Wade. Texas had left an abortion ban on the books for the past 50 years while Roe was in place.

Attorneys for Texas clinics provided a copy of Friday’s order, which was not immediately available on the court’s website.

See here and here for the background; Steve Vladeck provides a bit more context. You can see a summary of the order (order 22-0527) here. The relevant bits:

The parties are directed to submit briefing by 5 p.m. July 7, 2022 regarding whether the 269th District Court of Harris County, Texas, has jurisdiction to enjoin the enforcement of a criminal statute. See State v. Morales, 869 S.W.3d 941 (Tex. 1994). Real parties in interest are requested to respond to relators’ petition for writ of mandamus by 5 p.m. July 11, 2022. This order does not preclude further proceedings in the court of appeals and district court, including proceedings to address the jurisdictional issue described in paragraph 2 above. The Court is confident that those courts will proceed expeditiously.

[Note: The petition for writ of mandamus remains pending before this Court.]

The 269th Civil Court in Harris County, which issued the temporary restraining order that SCOTx has now lifted, has a hearing scheduled for July 12 to determine whether an injunction can be granted. We may get that on the 12th or 13th, and then subsequent rulings from SCOTx shortly thereafter. I assume the writ of mandamus was filed by the Attorney General to supersede all this and just declare that there’s nothing stopping them from enforcing that 1925 law that criminalized abortion. Don’t you just love it when this kind of order drops on the Friday evening of a holiday weekend? Axios, the WaPo, the NYT, and the DMN have more; as of Saturday morning when I drafted this the Trib had not yet published anything and the Chron was carrying this same AP story. Like I said, Friday night, holiday weekend.

UPDATE: Here’s the Trib story.

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2 Responses to SCOTx re-enables statewide abortion ban

  1. Kibitzer Curiae says:


    The Supreme Court added the substance of the decision in 22-0527 to the already-posted Orders List for the day, which is routinely issued at 9am each Friday with links to opinions in cases in which an opinion is issued. Otherwise it’s just the ruling/disposition with the basic case info.

    That’s how Kibitzer Curiae was able to post the substance of the order here and comment on in at 8:03 am on Saturday.

    As for not being immediately on the docket for the case in question, that’s because the public docket is not updated in real time. Even in cases with an opinion is issued on Friday, it may not appear until the next day.

    And procedural orders to the parties’ attorneys of record are also typically delayed (slightly) because they are sent out in bulk.

    That said, it would of course be preferable to have real-time SCOTX docket, which county-level court systems already have. But the parties’ filings (as distinguished from court actions) are normally available to the public through the efiling system (reSearchTX) once the deputy clerk accepts them (though there are some exceptions). And appellate filings are not paywalled.

  2. Kibitzer Curiae says:

    Update on WWH v. Paxton (injunction suit against enforcement of the old pre-Roe criminal abortion statute)

    This morning (July 11) the Plaintiffs and the AG’s Office agreed to cancel the temporary injunction hearing scheduled for tomorrow, Tuesday, July 12, 2022, in the 269th District Court.

    Nothing in that regard has so far been filed in the Texas Supreme Court (as of ca 2PM), which is currently considering some intriguing jurisdictional issues in the challenge to the TRO previously granted by Harris County Judge Weems. Perhaps they were notified by phone or email.

    The Supremes will either have to hurry up and issue an opinion or dismiss the mandamus case against Judge Weems because the TRO is going to expire tomorrow, except that an extension has allegedly been consented to by the Dallas DA only as to that DA, not the other defendants. The judgment in Roe was against the Dallas DA.

    The parties submitted a special briefing on the question of whether the criminal statute can be attacked in a civil pre-enforcement proceeding, and it would be nice to have the Hight Court clarify the very murky caselaw on that matter. But it has also been argued that the clinics are not even proper plaintiffs because the criminal law at issue (to the extent it remains good law) runs against individuals, not entities. The entities, after all, can’t be jailed and could only be affected indirectly. So there may be a lack-of-standing/improper plaintiff issue that the Supreme might resolved differently than Judge Weems, who overruled it and preceded to hear and grant the restraining order, thereby exercising jurisdiction.

    The trial court case number is Cause No. 2022-38397 – WHOLE WOMAN’S HEALTH et al vs. KEN PAXTON [not Kenneth Warren] et al, pending in the 269th Judicial District, Harris County.

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