Texas Abortion Law Heads to State Courts as Legal Contest Widens

Sept. 9, 2021, 10:01 AM

Abortion providers in Texas are seeing some success in state-court lawsuits brought to derail a law giving private citizens a right to sue for alleged violations of its ban on abortions after about six weeks.

Three Planned Parenthood affiliates in Texas won a temporary restraining order blocking Texas Right to Life, its legislative director John Seago, and several unnamed defendants from suing them to enforce S.B. 8’s ban on abortions after fetal cardiac activity is detected.

This state-court suit and others like it may be the “best” option at this point to get to a decision on the law’s validity fairly quickly, Rachel Rebouché told Bloomberg Law. Rebouché is interim dean at Temple University School of Law and an expert on abortion and reproductive health law.

As a result of the law, some abortion providers in Texas have closed and others are offering abortions only to women whose pregnancies haven’t exceeded the six-week mark, meaning about 85% to 90% of Texas women will be unable to get one, according to Planned Parenthood.

Rebouché acknowledged that the order is limited in nature, and that it will take time for the case to wind its way through the state courts. But the state-court case may get to the issue of S.B. 8’s validity under the state constitution faster than a federal court would decide if the law meets federal constitutional standards, she said.

Restoration of Access Sought

S.B. 8 grabbed national attention when the U.S. Supreme Court declined to step in and stop its enforcement while a challenge to its constitutionality proceeds in federal court.

Planned Parenthood’s goal is to restore access to abortion for all women affected by the law “as quickly as possible,” Julie Murray, an attorney with the group representing the affiliates in Texas District Court for Travis County, told Bloomberg Law.

Planned Parenthood is fighting “as hard as it can, on as many fronts as necessary,” Murray said.

The Travis County case isn’t meant to take the place of the federal litigation, Murray said. That suit is still ongoing, and Planned Parenthood wants decisions declaring the law invalid under both the state and federal constitutions—an “obtainable outcome,” she said.

The next step in the state-based litigation—a preliminary injunction hearing—is set for Sept. 13, Murray said. Planned Parenthood can then proceed to the discovery phase, during which it should be able to learn the names of the “Doe” defendants, as Seago said in a federal court filing that he already knows of several individuals willing to bring test cases, she said.

Order’s Limited Nature

The state court TRO issued by Judge Maya Guerra Gamble on Sept. 3 addresses clinics’ short-term needs and is important to the clinics and their staffs, but it’s still “not enough,” Murray said.

For example, the order applies only against the named defendants and blocks potential suits against only the three affiliates that brought the suit, Jennifer Popik, director of federal legislation for the National Right to Life Committee, told Bloomberg Law.

Neither the TRO nor a preliminary injunction would stop anyone else from suing the Planned Parenthood affiliates or other abortion providers in the state, Popik said. And it hasn’t stopped Texas Right to Life from pursuing information about possible S.B. 8 violations through a website it created for that purpose, she said.

Rebouché pointed out that the order is valid only in the county where its was issued, so clinics located in other areas of the state will have to bring their own suits. Travis County, with more than 1 million residents, encompasses the state’s capital, Austin.

Groups that pay or assist women seeking abortions can also be sued under the law. At least one of those groups, North Texas Equal Access Fund, also sought a pre-suit injunction in state court.

This “piecemeal” process is labor-intensive and burdensome, Rebouché added. Identifying the defendants will be tricky as well, because S.B. 8 gives enforcement authority to virtually anyone, she said.

But the alternatives are costly, Rebouché said. Because S.B. 8 suits can be brought based on conjecture by people who only suspect noncompliance, providers have to be very careful to ensure the gestational age limit is met for every patient, she said. And studies have shown that providers that shut down rarely reopen, she said.

Other State Litigation?

The federal courts’ refusal to stop the law’s enforcement sparked the interest of others states. Officials in Florida and Ohio, for example, said they’ll look into passing similar private enforcement laws, Popik said.

Popik expects state legislatures will take up provisions similar to Texas’s law when they convene in January. The national organization is “looking ahead to the interests of those states,” she said.

Rebouché, too, is anticipating similar laws in other states and the litigation they’ll undoubtedly prompt. There’s no way of telling how other federal trial and appellate courts will rule, and there could even be a circuit split, she said.

This issue “is definitely coming back to the U.S. Supreme Court,” Rebouché said.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

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

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com

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