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Supreme Court Leaves Texas Abortion Providers With Few Remedies

Dec. 11, 2021, 2:00 PM

Texas abortion providers have few good options for challenging a state law that prohibits the procedure after six weeks of pregnancy following a U.S. Supreme Court decision that left the law in place, while allowing the underlying case to proceed.

The law—known as S.B. 8—has virtually shut down abortions in Texas and is the most restrictive in the country. The legal challenge now presumably goes back to the U.S. District Court for the Western District of Texas, where it originated.

How much the federal trial court can do once it gets there remains uncertain. The Supreme Court said the only valid defendants are state licensing agencies such as the Texas Medical Board, which the law says can take action against doctors, nurses, pharmacists, and other licensed professionals for alleged violations.

A Texas state court judge’s Dec. 9 decision raises some possibility that enforcement could be stopped, at least on a county-by-county basis, a reproductive health law expert said. But the law’s ultimate fate won’t be decided any time soon and could end up eclipsed should the Supreme Court rollback abortion rights in a separate case now pending out of Mississippi.

Enforcement Mechanism

S.B. 8’s enforcement mechanism proved to be a hurdle for plaintiffs who challenged the law in federal court. It’s difficult, if not impossible, to predict who will bring a state-court lawsuit accusing a provider of violating S.B. 8 because citizens are the ones empowered to enforce the law.

Thus, the plaintiffs sued the state’s attorney general and sought orders blocking state-court judges and county courts from accepting filings and hearing cases brought by private citizens.

But the Supreme Court said providers can’t sue those people. The only valid defendants, it said, are state licensing agencies.

Enjoining licensing agencies from taking action against doctors or nurses would eliminate one potential repercussion of an S.B. 8 suit. Providers wouldn’t have to fear losing their licenses for allegedly violating the law, Elizabeth Sepper, a professor at the University of Texas at Austin School of Law, told Bloomberg Law.

But the Supreme Court’s decision otherwise “doesn’t take away any of the threats of S.B. 8 enforcement,” Sepper said.

An injunction may be short-lived anyway. One of the criteria for issuing an injunction is whether the party requesting it has shown a likelihood of winning on the merits. That means the district court would have to find the law is likely unconstitutional, Rachel Rebouché told Bloomberg Law.

The U.S. Court of Appeals for the Fifth Circuit probably would overrule that decision, said Rebouché, interim dean at Temple University School of Law and an expert on abortion and reproductive health law.

The appeals court has ruled in Texas’ favor in another recent abortion case.

As a result, the S.B. 8 challenge could wind up back at the Supreme Court.

Mississippi Case

But the Supreme Court’s other abortion case this term could effectively end debate over S.B. 8 before such a challenge returns to its docket.

In early December, five justices signaled at oral arguments over a Mississippi law that bans abortion after 15 weeks that they’re ready to overturn the seminal decisions establishing the right to abortion: Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey.

If that happens, then the argument that S.B. 8 violates federal constitutional law is moot, Rebouché said. A decision in Dobbs probably won’t be issued until June 2022.

Avenue for Providers?

Texas state courts may still provide an avenue for challenging S.B. 8, Rebouché said. On Dec. 9, a state court judge sitting in Travis County held the law’s statutory standing provision unconstitutional.

The provision giving “any person” the power to sue anyone who allegedly performed or aided an abortion after six weeks’ gestation violates the Texas Constitution’s open courts provision, Judge David Peeples said.

Peeples also invalidated a provision automatically awarding plaintiffs $10,000 in damages, saying it goes against the U.S. Constitution’s 14th Amendment due process clause because the plaintiffs haven’t suffered any compensable injuries.

The provision delegating enforcement powers to private citizens was also ruled invalid. The enforcement mechanism is an unlawful delegation that violates the state constitution’s separation of powers provision, Peeples said.

The decision is very narrow—it applies only in one county, Rebouché said. And it’s already been appealed.

But it signals that attacks on the law in state court can succeed, suggesting that the focus may shift from federal to state court, Rebouché said. State courts may be able to make more of a difference as to the law’s enforcement, she said.

The decision also highlights the role the state constitution can play in resolving the issue, Rebouché said. It “moves the needle from a laser-like focus on federal principles, like sovereign immunity, to the development of state-law protections on access to the courts and judicial power,” she said.

The case is Whole Woman’s Health v. Jackson, U.S., No. 21-463, 12/10/21.

-With assistance from Lydia Wheeler

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com