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Texas Abortion Providers Rebut Judge’s ‘Business as Usual’ Claim

Jan. 10, 2022, 4:29 PM

Abortion providers in Texas pushed back against a Fifth Circuit judge’s statement that state-court orders have allowed them to return to doing “business as usual” despite a law that prohibits abortions after about six weeks of pregnancy.

Contrary to Judge Edith H. Jones’ suggestion, Texas state courts haven’t issued broad orders blocking enforcement of the law known as S.B. 8, an attorney for Planned Parenthood Federation of America told the U.S. Court of Appeals for the Fifth Circuit.

The Planned Parenthood clinics challenging the law—"and, to their knowledge, all other abortion providers in Texas—are currently operating in compliance with S.B. 8,” a letter advising the court of additional information said. Ever since the law took effect on Sept. 1, abortion hasn’t been available throughout Texas once cardiac activity is detected, the letter said.

Jones made the statement during oral arguments on a motion by Texas professional licensing board members to send the question of their authority to enforce S.B. 8 to the Texas Supreme Court, instead of remanding the case to a federal district judges who’s indicated an openness to finding the law unconstitutional.

It’s an important question because a ruling by the state’s high court in favor of the board members likely would end the suit, as a December decision by the U.S. Supreme Court left them as the only defendants.

No Injunction

There “is no permanent injunction in place in the pending state-court litigation involving S.B. 8,” Julie A. Murray told the Fifth Circuit. She represents Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, and doctor Bhavik Kumar.

A temporary injunction issued by the Travis County District Court doesn’t affect the board members because they aren’t defendants in that case, Murray said in the letter. The injunction applies only against Texas Right to Life and people “acting in concert” with it, she said.

The Travis County suit has been consolidated with other cases in a multidistrict litigation. The MDL court denied TRTL’s motion to dismiss under the Texas Citizens Participation Act—a decision that’s been appealed, the letter said.

A final judgment on the Planned Parenthood plaintiffs’ request for a permanent injunction against TRTL can’t be issued until the appeal ends, the Jan. 7 letter said.

Board’s Power Debated

S.B. 8 puts enforcement power in the hands of ordinary citizens, but also allows the boards to take disciplinary actions against licensed professionals—like doctors, nurses, and pharmacists—accused of violating it.

Board members want the Texas Supreme Court to decide if, as a matter of statutory interpretation, they have enough enforcement power to be subject to a suit barring them from bringing legal actions against alleged violators.

The U.S. Supreme Court’s decided in December that the board members don’t enjoy the same sovereign immunity from suit as officials like Texas Attorney General Ken Paxton (R), state-court judges, and court clerks. But there’s enough uncertainty in that decision to ask the state high court to clarify the law, the board members said.

Oral arguments on the certification question sometimes grew heated.

Obama-appointee Judge Stephen A. Higginson pressed the board members’ attorney on whether certification to the state court would be proper after the Supreme Court decided the suit against them could proceed beyond the dismissal stage.

Jones, who was appointed by President Ronald Reagan, and Trump appointee Judge Stuart Kyle Duncan appeared likely to send the question to the state’s top court.

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

The case is Whole Woman’s Health v. Jackson, 5th Cir., No. 21-50792, supplemental information filed 1/7/22.

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