Challenge to Texas abortion law punted to state high court

(CN) — The Texas Supreme Court, every member of which is a Republican, was asked Monday to decide whether abortion providers named the right defendants in their challenge to a Texas law that bans the procedure before the point when a lot of women would even know they are pregnant.

U.S. Circuit Judge Stephen Higginson, an Obama appointee, dissented from the ruling that jettisons the federal case, saying the matter belongs not with the Texas Supreme Court but a U.S. District Court in Texas.

“In this case, we have authority neither to delay implementation of the Supreme Court’s mandate nor to reconsider the Supreme Court’s holding that, because the defendant licensing officials enforce S. B. 8, the plaintiffs’ lawsuit against them can proceed,” Higginson wrote.

The Texas Heartbeat Act bans, also known as Senate Bill 8, bans abortions once a fetal heartbeat is detected — in other words at around six weeks, with no exceptions in cases of rape or incest. It is enforced through private citizens filing lawsuits against abortion clinic doctors and staff, as wells as other private citizens who assist a person in obtaining an abortion. The statute strictly prohibits state officials from enforcing the law, instead deputizing private citizens to sue those who infringe its terms.

For months since the law's enactment, this scheme has hamstrung opponents who sued state officials, judges and medical licensing officials in federal court. 

The U.S. Supreme Court first refused to enter a preenforcement stay back in September and then ruled three months later that the state officials and judges are not proper defendants. Only the claims against the licensing officials remain active.

Texas argues, however, because licensing officials are also barred from enforcing SB 8, they are not proper defendants either. Abortion providers argue that while they may be connected to the state, licensing officials will be able to indirectly enforce the law by revoking the medical license of doctors who provide abortions. 

At a hearing in New Orleans earlier this month, the opponents argued that having the Texas Supreme Court give its input now would go against the U.S. Supreme Court’s instructions.

“The Supreme Court ordered that the claims against the licensing officials must be allowed to proceed past the motion to dismiss stage,” said Marc Hearron, a lawyer with the Center for Reproduction Rights representing the abortion providers.

Monday's letter referring the case concludes otherwise, saying that the Supreme Court allowed the case against licensing officials to continue but "did not conclusively determine the scope of the officials’ state law duties, if any, under S.B. 8.”

“The Supreme Court’s order did not prohibit this appellate court from ordering certification, and it placed no other explicit limitation on this court’s consideration of these motions," U.S. Circuit Judge Edith Jones, a Reagan appointee, wrote.

Joined by the Trump-appointed U.S. Circuit Judge Kyle Duncan, Jones emphasized that the case at hand is not about abortion “but about the constitutional authority of federal courts to entertain this pre-enforcement suit against a state law.”  

The certified question before the Texas Supreme Court is if the “attorney general, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, [can] take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act."

Professor Stephen Vladeck of the University of Texas School of Law said in a post to Twitter that the court’s ruling “keeps the case in limbo — and abortion after 6 weeks in the nation’s second-largest state — a dead-letter, indefinitely.” Vladeck previously spoke before the Senate Judiciary Committee about the law and the Supreme Court’s initial decision not to block the law from taking effect on Sept. 1.

Since taking effect, the law has successfully pressured abortion clinics from providing the procedure out of fear of costly litigation. If a private citizen’s lawsuit prevails, they can be awarded a minimum of $10,000 and attorneys fees. Many people in the state with the means to travel have crossed state lines in search of terminating a pregnancy.

In a separate challenge of SB 8 that remains ongoing, Texas District Court Judge David Peeples ruled that the law violates both the U.S. and Texas Constitution but did not issue an injunction against it. In that case, abortion clinics in the state sued the pro-life group Texas Right to Life, as well as the group's legislative director, to stop them from filing lawsuits against them under SB 8.

It is unclear how long until the Texas Supreme Court responds to the questioned certified to it Monday by the Fifth Circuit.

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