The Texas Supreme Court shut down a closely watched legal challenge to the state’s restrictive abortion law, ruling that clinics and women’s-rights advocates can’t sue state medical-licensing officials because they don’t enforce the law.
In a unanimous Friday ruling, the state high court said Texas officials were immune from suit because the abortion law made civil suits by private citizens the exclusive avenue of enforcement. The decision will likely result in the dismissal of a federal suit that the clinics had hoped would get the U.S. Supreme Court to overturn the law.
“We are in a moment of crisis not only for reproductive rights but for our justice system and the rule of law,” Northup said. “With this ruling, the sliver of this case that we were left with is gone.”
Northup was referring to the tortuous path that had already seen the clinics’ case stripped down to focus on the question of whether a small subset of state officials could be sued. Challenges to the unusual law on other grounds remain active, however.
Who to Sue
Clinics and women’s rights advocates have struggled to figure out who to sue, because lawmakers forbade state officials from enforcing the Texas ban. Instead, individuals enforce the statute by being allowed to sue and collect as much as $10,000 if successful.
Under the law, doctors, clinic workers, friends and even Uber drivers could be sued for helping a woman end an unwanted pregnancy past the cutoff date. The plaintiffs don’t need any connection to the banned abortion and can live anywhere in the U.S.
Because abortion opponents can sue providers and enablers multiple times over the same procedure, the threat of crippling litigation led Texas clinics to cease all but early-stage abortions when the law took effect Sept. 1.
In December, U.S. Supreme Court justices took an emergency look at the clinics’ challenge and said they were troubled that Texas outsourced enforcement of its laws to private vigilantes. They worried the legal maneuver would prevent judges from reviewing an unconstitutional law until somebody gets sued for breaking it. Nevertheless, the high court left Texas’s ban in place, and allowed only a sliver of the clinics’ challenge -- the part against state licensing officials -- to proceed to trial.
‘Thumb Our Noses’
When the clinics’ case was sent back to the federal appeals court in New Orleans, however, those judges detoured the challenge to the Texas Supreme Court instead of sending it for immediate trial in Austin, where a federal judge already declared the ban unconstitutional in a pretrial ruling -- effectively asking the state high court to second-guess the Supreme Court decision.
The all-Republican Texas Supreme Court rejected the Supreme Court’s decision, even though Texas Justice Debra Lehrmann warned during oral arguments that siding with Texas would “thumb our noses” at the U.S. high court.
The case now returns to New Orleans, where the appeals court by custom must follow the Texas Supreme Court’s decision.
Clinics and abortion-rights groups vowed to keep fighting the law, despite the setback. They noted that 10 other states have introduced copycat anti-abortion measures so far this year, including Oklahoma, where Planned Parenthood says more than half of abortion patients are now from Texas.
“An unconstitutional ban on abortion after six weeks continues unchecked in the state of Texas,” Northup said Friday. “The courts have allowed Texas to nullify a constitutional right. We will continue to do everything in our power to right this wrong.”
Other Challenges
A number of other cases challenging the Texas law rage on elsewhere.
One abortion provider, Alan Braid, drew a trio of Texas state court challenges after he publicly admitted in a newspaper editorial that he’d performed a banned abortion on a patient in her first trimester. Through a series of legal maneuvers, Braid got the challenges transferred to federal court in Chicago, where one of the plaintiffs lives. A U.S. judge is now weighing the ban’s constitutionality in those challenges.
Another batch of legal challenges pits various Texas clinics, doctors and abortion advocates against a handful of specific high-profile pro-life advocates who’d threatened to sue them. The state court cases have been consolidated for pretrial processing in one Austin proceeding. There, a state judge ruled Texas’s heartbeat ban is unconstitutional, but he left it in place while the appeal continues, likely on a path that will return it to the Texas Supreme Court.
The U.S. Justice Department also sued Texas last year alongside the clinics, seeking a federal court order declaring the abortion ban unconstitutional. The Supreme Court initially rejected that challenge on an emergency basis, but then returned the Biden administration’s case to the Fifth Circuit, which will take up the fight again in April.
Texas’s Republican politicians vowed to keep fighting to hang onto their abortion ban.
“This is a win for thousands of unborn Texans and I’m proud to defend those who do not yet have a voice,” state Attorney General
The case is Whole Woman’s Health v Jackson, 22-0033, Texas Supreme Court (Austin).
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Joe Schneider, Anthony Lin
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