US Supreme Court allows abortion providers to sue over Texas’ six-week abortion ban, but keeps law in place

Legal experts say the court’s ruling has implications for a variety of rights beyond abortion.

By Ashley Lopez, KUT-Ausitin; Radio story by Jill AmentDecember 10, 2021 7:53 am, , , ,

Listen above for our interview with two legal experts about the court’s rulings, or read the transcript, following this news story.

From KUT:

The U.S. Supreme Court ruled Friday that abortion providers can continue their legal challenges to a Texas law that prohibits abortions as early as six weeks into a pregnancy.

The court also dismissed a lawsuit filed by the U.S. Department of Justice that sought to block the law, arguing it was in direct violation Roe v. Wade, the legal precedent that made abortion legal in the U.S. up to 24 weeks into a pregnancy.

Abortion providers’ legal challenges have faced hurdles because of the way state lawmakers wrote the law, known as Senate Bill 8.

“The Court holds that the petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8’s compliance with the Federal Constitution,” the court wrote. “Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S. B. 8.”

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health — the lead plaintiff in the case — said in a statement that the decision means there is “hope for an end to this horrific abortion ban” that has been in effect for more than 100 days now.

“The legal back and forth has been excruciating for our patients and gut-wrenching for our staff,” she said. “We’ve had to turn hundreds of patients away since this ban took effect, and the Supreme Court’s refusal to block the law means the heartbreak doesn’t end. Texans deserve abortion care in their own communities.”

Kimberlyn Schwartz, the director of media and communication for Texas Right to Life, said in a statement that her group was “grateful” the court didn’t side with the U.S. Justice Department and kept the law in effect as the legal challenges move forward.

“While we continue to fight for this policy in the lower courts, Texas Right to Life celebrates that the Texas Heartbeat Act will continue saving between 75-100 preborn children from abortion per day,” she said. “The success of our efforts is embodied by each individual life that is rescued.”

Texas’ law, which has been in effect since Sept. 1, is the strictest ban on the procedure in the country.

Even though it runs afoul of Roe v. Wade , Texas has been able to keep SB 1 in place because of its enforcement mechanism. Instead of state agencies enforcing the ban, lawmakers drafted it to be enforced by private citizens.

Anyone, including people outside Texas, can sue someone who provides an abortion to someone past that six-week limit. They can also sue anyone who helps someone get an abortion, which could include family members, counselors and even rideshare drivers.

This setup, which a federal judge described as a “scheme,” has made it difficult for abortion providers and others to figure out how to sue to stop the law.

As a result, clinics across the state have been turning away hundreds of patients seeking abortions; many people don’t realize they’re pregnant until after six weeks into a pregnancy.

In her opinion, Justice Sonia Sotomayor wrote that since SB 8 went into effect “the law has threatened abortion care providers with the prospect of essentially unlimited suits for damages” brought by “bounty hunters” from around the country.

“The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy,” she wrote.

According to a recent study from the Texas Policy Evaluation Project at UT Austin, nearly 50% fewer abortions were provided in Texas in September — the first month the law was in effect — compared to a year ago.

Marva Sadler, the senior director of critical services for Whole Woman’s Health, told KUT this week that the four clinics her group operates have been serving about 30% of their usual number of patients.

She said there have already been financial ramifications.

“We are losing staff, we are losing providers, we are losing patients,” Sadler said. “We are definitely seeing the hurt of it for sure.”

The biggest impact, however, will be on the people who are forced to continue a pregnancy, Sadler said, because they didn’t have the means or resources to leave the state to get an abortion.

“In nine months there are going to be a lot of unwanted pregnancies coming to term,” she said. “I wonder what the preparation and the plans are for the plethora of children who will be born in the next nine to 10 months who are unwanted, unsupported — and have parents who don’t have the financial, mental or physical means to take care of them.”

In his opinion, Chief Justice John Roberts wrote that “Texas was wrong” in claiming that plaintiffs couldn’t sue to stop the law from going into effect — and that plaintiffs should be able to challenge it now.

“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay,” he wrote.

Texas Standard spoke with two legal experts about the Supreme Court’s ruling, and its likely impact on the availability of abortion in Texas.

Seema Mohapatra is a Murray visiting professor at Southern Methodist University Dedman School of Law in Dallas. Her expertise includes health care law and public health law. Steve Vladeck is Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law.

This transcript has been edited lightly for clarity:

Texas Standard: This is a very dense opinion in Whole Woman’s Health vs. Texas. In the other case before the court,  the Biden administration sued Texas to try to prevent SB eight from taking effect, or at least put a hold on it. The court said that that was improvidently granted. What does that mean?

Steve Vladeck: I think  that it’s impossible to understand the DOJ case without the provider’s case – Whole Woman’s Health. What the court has basically said is that the  providers can go forward and sue four specific state licensing officials, but they can’t sue anybody else. And that part, the second piece of that – they can’t sue anybody else – is what divided the court five-to-four, with Chief Justice Roberts joining the liberals in dissent.

And so, for pregnant people in Texas, the bottom line is that SB 8 is still in effect. Abortions are still unavailable after six weeks of pregnancy. And even if Whole Woman’s Health and other providers are able to win these cases going forward, it’s now not clear that such a victory would allow them to reopen their doors.

Texas Standard: So a very narrow victory, I suppose one could say, for those challenging SB 8?

Vladeck: Narrow, or perhaps even Pyrrhic, in the sense that the providers can go forward, which is more than the court of appeals had said. But they can go forward only against a small subset of state officials who really are not instrumental in the enforcement of this law. And if the goal of the providers is to have faith and confidence that they don’t face an unlimited stream of these enforcement actions, even a successful injunction against those four state officials may not be sufficient.

Texas Standard: We should point out that the court was very clear. This decision in Whole Woman’s Health does not say anything about the status of Roe v. Wade or reproductive rights per se. Is that correct? 

Vladeck: That’s right. I think the the court, as we suspected from how they framed these cases all along, stayed away from the substance of the right at issue. But let’s be frank, it’s hard to imagine the five five conservative justices who hid behind procedural technicalities to not allow the plaintiffs – the providers – to sue anybody else, being similarly hamstrung if this were California and gun rights. And so I think that’s the real concern. It’s not just that abortion continues to be unavailable to people in Texas, it’s that the court has now largely blessed this incredibly, cynical move by the Texas Legislature to frustrate the enforcement of constitutional rights in a way that will either provoke copycats from other states, or that will be a maneuver that only red states are allowed to use, andnot blue states. And neither of those are healthy results for our legal system.

Texas Standard: It appeared that Justice Sotomayor was very concerned about the federal court’s refusal to issue relief, when we’re talking about the exercise of a constitutional right. And what the court seems to acknowledge was an attempt to evade judicial review. Is that your read of what Sotomayor had to say here?

Vladeck: Yeah, not just Justice Sotomayor. I think it’s not just her dissent, which was joined by Justices Breyer and Kagan, but also the chief justice’s dissent. John Roberts, who is no fan of abortion rights, was really strident in his tone about how dangerous it is for the Supreme Court to basically bless this kind of transparent effort by the state legislature to frustrate the enforcement of our constitutional rights. That should be something that folks are all nervous about, regardless of where they stand on the specific question of the right to an abortion.

Texas Standard: Professor Mohapatra, I want to get your take on the opinion from the U.S. Supreme Court in these two cases? How do you read it?

Seema Mohapatra: Well, I think that the fact that it was such a narrow ruling is kind of a harbinger of things to come in terms of how the Supreme Court will rule later on in this term about the Dobbs case and abortion rights.

Texas Standard: That’s the case out of Mississippi. You’re talking about.

Mohapatra: Yes. And for practical purposes, in terms of people that are concerned about SB 8, it remains the law. And there’s really no effective right to an abortion in the state of Texas right now because there was no injunction that was granted in this case and there was really no talk about the merits of the case. This was a civil procedure kind of challenge.

Texas Standard: And now, just for the sake of people who may have woken up today and heard that a state judge had declared Texas’s abortion law unconstitutional. What’s the significance of that decision?

Mohapatra: That decision was an interpretation of the Texas Constitution, and that was not the same as thinking about the federal Constitution. So those are two separate issues that are related to the same SB 8 previability abortion law.

Texas Standard: As you think about this Dobbs case, What are we looking at? What are we looking at when the court does finally come down on that law in Mississippi? This is the 15-week abortion ban there.

Vladeck: As Professor Mohapatra says, I think we’re looking at a deci ion decision that’s probably going to really weaken the right to abortion, perhaps even get rid of Roe and Casey the altogether. And so that’s going to have enormous consequences, of course, for Texans, not just because of the six-week ban, but because of Texas’s trigger law, which would would go into effect the moment the Supreme Court overrules Roe.

I don’t mean to minimize that. I mean, Abortion is obviously a critically important issue. And it’s a huge impact of today’s ruling. I guess the key for me is that this is now about so much more than abortion, and this is about opening the door to whatever the Supreme Court says the underlying rights are in cases like Dobbs, with regard to the Second Amendment or the First Amendment, states now are given a roadmap for how to decide which rights we are and are not allowed to enforce in court. And that’s not a federal system. That is a system in which we have 50 constitutions under federal law and not just one.

Texas Standard Is that how you see this, Professor Mohapatra?

Mohapatra: I totally agree with Professor Vladeck. I think that this ruling will have impacts beyond abortion. And for those that are interested in abortion rights, I think that this has an impact. And kind of signals where the court is going. But there are rights that are protected by the Constitution, that another state might think – OK, well, this is not something that we’re going to be protective of. And basically, the court has now allowed some of these court cases to go forward and basically sidestep the U.S. Constitution and allow them to do so, which is worrisome in terms of thinking about our federal constitution.

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