Texas Supreme Court Deals Blow To Abortion Law Challenge

Topline

The Texas Supreme Court effectively killed abortion providers’ long-running challenge to Texas’ near-total ban on the procedure Friday, ruling that state medical licensing officials can’t enforce the law—meaning providers have no one left to sue in their effort to block the policy.

Pro-abortion rights protesters march outside the Texas State Capitol on Wednesday, Sept. 1, 2021 in … [+] Austin, Texas.

The Washington Post via Getty Images

Key Facts

The Texas Supreme Court, which is made up entirely of Republicans, unanimously ruled that officials at state medical licensing boards can’t enforce Texas’ Senate Bill 8 (SB 8), which prohibits nearly all abortions after approximately six weeks of pregnancy.

SB 8 directs private citizens to enforce the ban through lawsuits against anyone who “aids and abets” an abortion in the state, so the court ruled that state officials like those at medical licensing boards can’t take any action themselves to enforce it.

Abortion providers had argued that the licensing officials could be held liable, because they could punish doctors and nurses that perform abortions in violation of the law.

Providers had initially sued a range of state officials in an effort to block the law, but the U.S. Supreme Court ruled the lawsuit could only move forward against the licensing officials and not the others.

The U.S. Supreme Court then sent the case back to a federal appeals court, which asked the Texas Supreme Court to rule on whether the licensing officials could be sued under state law (rather than federal law, as the U.S. Supreme Court considered).

The Center for Reproductive Rights, which represented the abortion providers in the lawsuit, acknowledged in a statement Friday the ruling means the federal appeals court will throw out their lawsuit and SB 8 “will likely remain in effect for the foreseeable future.”

What To Watch For

The Texas Supreme Court ruling means abortion providers do not have a clear legal path forward to challenge SB 8, as courts have now blocked the providers from suing every defendant they had named. Other challenges to SB 8 are moving through the state court that more narrowly consider whether anti-abortion advocates can sue individual parties under the law, but rulings in those cases would only apply to those parties rather than block the law statewide.

Chief Critic

“With this ruling, the sliver of this case that we were left with is gone,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “The courts have allowed Texas to nullify a constitutional right. We will continue to do everything in our power to right this wrong.”

Key Background

SB 8 went into effect September 1 as the most extreme abortion restriction in the U.S. While similar abortion restrictions have been blocked in court, SB 8 was crafted to evade judicial scrutiny through its lawsuit enforcement mechanism, which was designed to make it difficult to name defendants who could actually be blocked from enforcing the law. Friday’s ruling marks the latest instance of that strategy succeeding, after the U.S. Supreme Court twice ruled against the abortion providers and also threw out a lawsuit brought by the Biden administration that sought to block the policy. Though a district court judge briefly blocked the policy in response to the federal government’s lawsuit, an appeals court then swiftly overturned that ruling.

Surprising Fact

Researchers at the University of Texas at Austin found SB 8 hasn’t actually affected abortion rates as much as anti-abortion advocates had hoped in the six months since it’s taken effect, as those seeking abortions in the state have largely obtained them through other means, like medication abortion or traveling out of state for the procedure. Abortions in the state had only decreased by approximately 10%, the studies found—though anti-abortion rights advocates told the New York Times they considered any reduction in cases to be a win.

Tangent

The Texas abortion law—and courts’ tacit acceptance of it—has already inspired a host of copycat bills nationwide. Legislative chambers in Idaho and Oklahoma have recently passed their own versions of the Texas law, and a new bill introduced in Missouri would even go far beyond it, using SB 8’s enforcement mechanism to also prohibit Missourians from seeking abortions out of state. Other states have also adopted SB 8’s lawsuit provision for other political issues, such as a California bill that allows civil lawsuits against firearm manufacturers and distributors.

Texas Supreme Court Deals Blow To Abortion Law Challenge — Likely Killing Providers’ Case