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In its expected ruling on Texas’ controversial abortion ban last week, the US Supreme Court expressed serious concerns about the law’s unique enforcement mechanism, which allows anyone to sue those who break the law. But ultimately, the majority refused to block its implementation and instead limited how the legal challenge can proceed.
The court’s divided opinion will define the next chapter in the legal saga, but after the smoke cleared on Friday, one thing became increasingly clear: For abortion providers fighting restrictions, there is no there may be more to gain.
“The Supreme Court dismissed the most promising claims that would have halted the lawsuits,” said Julie Murray, one of the abortion providers’ lead lawyers in the case. “A significant portion of the trial has been foreclosed by the Supreme Court decision and this is going to have a very significant negative impact on access going forward and on Texans.”
The Supreme Court ruled that the providers could continue to challenge the Texas law, but weakened their legal strategy by striking out nearly all of the defendants in the case, leaving proponents of abortion with few options for a viable trial. . And legal experts say the state may be able to easily counter what remains of the lawsuit by changing the law.
The High Court on Thursday dealt another blow to abortion providers by sending the case to the 5th Circuit Court of Appeals, rather than a district court, making it more likely that a ban on abortions after about six weeks of pregnancy remains in effect.
Now, there are no clear paths to a major victory on behalf of abortion rights advocates, and those that remain are likely to be hard fought and slowly work their way through the court system through appeals.
“Calls can take months or even years. And so the real impact of the Supreme Court’s decision last week was essentially to ignore the ongoing impact on the ground for Texans in need of abortions,” Murray said. “[It is] will end up harming patients and their families – potentially for many years.
Abortion providers have complied with the law for fear of financial ruin, making the ban one of the biggest victories for abortion advocates in recent history. In September, the first month the law took effect, the number of lawsuits fell by half from the same month last year, according to research from the University of Texas at Austin.
Amy Hagstrom Miller, president of Whole Woman’s Health, which operates four clinics in Texas and is the lead plaintiff in the providers’ lawsuit, warned last week that the current volume of services was not enough to keep the clinics open long. term.
“Staying open is not sustainable if this ban stays in place much longer,” Hagstrom Miller said. “We are grateful to the donors, foundations and people who have supported us in the meantime… but the future looks bleak if we cannot get justice here.”
Who can opponents of the law sue?
The law, commonly referred to as Senate Bill 8, allows private citizens to sue those who help others obtain abortions after about six weeks of pregnancy, and if the lawsuit is successful, plaintiffs get at least $10,000. damages. It also bars Texas officials and law enforcement from enforcing the law.
This new combination made the law notoriously difficult to overturn in court. Legal challenges to a law usually involve suing government officials and asking them to stop them from enforcing it. But by offloading enforcement to private citizens and limiting who can enforce the restriction, legal opponents have struggled to name defendants who could be prosecuted to stop the law. The Supreme Court’s decision on Friday made the number of possible defendants even smaller.
In its ruling, the court cited sovereign immunity — which shields government entities from certain civil suits — in ruling that vendors cannot sue local government officials, including clerks.
Targeting clerks was a key legal strategy in challenging providers. The goal was to prevent clerks from receiving and processing lawsuits filed under the abortion law. The tactic has been used before when the Biden administration asked a federal district judge to temporarily order the courts not to accept lawsuits related to the abortion law. This order only lasted two days before Texas successfully appealed. The Supreme Court on Friday ended the Biden administration’s trial, saying the United States lacked the legal standing to intervene.
Now that the strategy is off the table, legal experts agree it seems more unlikely than ever that abortion providers could prevent lawsuits from being filed in the first place.
The Supreme Court has allowed abortion providers to name state licensing officials as defendants, who could potentially threaten to revoke the licenses of medical professionals who violate abortion law. But Erik S. Jaffe, a Washington, D.C.-based attorney who represents a gun rights group that opposes the law, said Texas could simply change the law to explicitly bar licensing officials from to apply it, which would also make them unfit defendants.
The road ahead
It usually takes 25 days for a case to be sent to a lower court after a Supreme Court ruling, but abortion providers have called for the process to be expedited.
In that case, the vendors asked that the case be referred to U.S. District Judge Robert Pitman, who had previously stopped enforcement. State attorneys argued that he should be remanded to the 5th Circuit Court of Appeals and said they intended to have that court take the remaining legal challenge to the Supreme Court of Texas.
The Supreme Court agreed Thursday to expedite the filing, but sided with the state and sent the case back to the 5th Circuit.
“We have indications of what these two courts think about the validity of the law, whether it can be challenged and how difficult it is to allow it to remain in force,” said Leah Litman, professor of law at the ‘University of Michigan. . “With the 5th Circuit, everyone knows they’re not going to break the law.”
This means that the ban on abortions after about six weeks of pregnancy will likely remain in effect in Texas pending appeal.
Despite the order to expedite the 25-day waiting period, Litman said, “nothing about this will be expedited.”
If the 5th Circuit grants the state’s request to send the remaining case to the Texas Supreme Court, the state court would then decide whether the challenge can proceed, which could spark more legal battles.
“This issue … is going to drag the case out, which means the law will likely remain in place and out of district court for the foreseeable future,” Litman said.
A state judge has already ruled that the law is unconstitutional, but that’s a separate issue, narrowly centered on whether it can be blocked by a challenge against licensing officials.
In an emailed statement, Murray said Planned Parenthood was “disappointed that this matter will not immediately return to the District Court so that it can finally rule on the constitutionality of SB 8 and order an appropriate remedy on the narrow claims that the Supreme Court dropped cheekily.”
“Patients and providers urgently need relief from SB 8, and the state is once again blatantly trying to introduce an additional delay,” she added. “We will ask the Court of Appeals to return the case to the District Court as soon as possible, in accordance with the Supreme Court’s order.”
Murray said only the highest courts in the state and nation now have the power to end enforcement.
“What we need for a full and robust remedy is either a decision from the Supreme Court of Texas or the Supreme Court of the United States declaring SB 8 to be unconstitutional,” she said.
But the path to get there could take months or even years. And Texas has a lot of control over which cases go to one of the high courts.
To keep the law in place, state attorneys simply couldn’t appeal lost cases or drop them if it looked like they might go to the Supreme Court, Jaffe said.
“No one on the Texas side of things would be stupid enough, I don’t think, to let [a suit under the law] go all the way to the United States Supreme Court, let alone [to] the Texas Supreme Court, unless they’re damn sure of the answer,” Jaffe said.
The abortion providers’ challenge, he added, “is doomed.”
Disclosure: Planned Parenthood and the University of Texas at Austin financially supported The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the journalism of the Tribune. Find a full list here.