Texas’ abortion law could remain in place until summer if case goes to Texas Supreme Court

One law professor says Texas hopes to delay a decision until the U.S. Supreme Court decides on another abortion case that could overturn Roe v. Wade.

By Jill AmentJanuary 10, 2022 12:31 pm, ,

Texas is asking the U.S. Fifth Circuit Court of Appeals to allow Texas’ Supreme Court to take up a challenge to whether  licensing officials, including those in the state Health and Human Services department, Texas Medical Board and Texas Board of Nursing, have the power to enforce the state’s new abortion law, known as Senate Bill 8. SB 8 outlaws the procedure after about six weeks of pregnancy, and is one of the most restrictive in the country.

Seema Mohapatra, visiting professor of law at Southern Methodist University in Dallas, tells Texas Standard if that happens, the state supreme court could delay its decision until the U.S. Supreme Court decides on a separate abortion rights case related to a Mississippi law. If that happens, Texas’ law would remain in place until then.

Listen to the interview with Mohapatra in the audio player above or read the transcript below to learn more about how this case has had an unusual trajectory, and could even end up back in federal district court instead of the state supreme court.

This interview has been edited lightly for clarity.

Texas Standard: Abortion providers had been trying to strike down the law. The state of Texas asked the Fifth Circuit Court of Appeals to consider what, exactly?

Seema Mohapatra: They wanted to the Fifth Circuit to actually send the case to the Texas Supreme Court to decide whether the licensing officials that the providers are suing actually have power to enforce the law. Their position is that these officials do not.

Could you give us a sense of why Texas wants this to end up in the state supreme court? Is this an unusual trajectory for this case?

This is absolutely an unusual trajectory for this case. Texas basically wants to delay this case from being decided, and based on what we had heard from the U.S. Supreme Court’s arguments about SB 8, it seems that the Supreme Court of the United States is poised to actually overturn Roe v. Wade. And Texas’ position seems to be that they want SB 8 to be in force until that time.

And so they are trying to put roadblocks in for this decision, for the case to actually go on – the provider’s case against the licensing officials. And so this is a little bit of a delay tactic until June, when they expect that the U.S. Supreme Court is going to be ruling about abortion rights.

Is there any reason that opponents of this law, the plaintiffs in this case, would not want the Texas Supreme Court to hear this case, other than the timing factor?

Well, the fact that SB 8 is going to remain the law, and so there is essentially no abortion access in the state of Texas. And so any people that need an abortion services are not going to be able to get it. And so the plaintiffs here are very concerned about that. And so this is an, essentially, another delay. And so every time you have a delay, we have thousands of women that were not be able to access this kind of care.

Is there a possibility that the Texas Supreme Court, if it gets this case, just waits for an outcome in the U.S. Supreme Court – one that could, perhaps, overturn Roe v. Wade?

It is very possible. There’s lots of flexibility. And even if the providers ask for an expedited decision from the Texas Supreme Court, they have the power to kind of let it go, timing-wise, a little slower. And even in the arguments that we heard on Friday with the Fifth Circuit, it seemed like some of the judges were suggesting, well, shouldn’t we just sit on this until the U.S. Supreme Court decides that Mississippi abortion case?

It’s not a foregone conclusion that Texas will win before the Fifth Circuit. There’s a possibility that that court could remand to a lower federal district court, and the federal law, at least right now, is pretty clear on reproductive rights, correct?

Yes, if so, if it is remanded to the federal district court, the federal district court would consider whether the plaintiffs’ case against the licensing providers is valid and would have the power to enjoin SB 8. That said, it’s not clear how they’re going to interpret the federal law, which, you know, Roe v. Wade and Planned Parenthood v. Casey are the law of the land, but it’s not clear how the courts are going to be interpreting that.

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