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Texas high court hears challenge to near-total abortion ban

After being detoured by the Fifth Circuit, the Texas Supreme Court heard arguments in what remains of a federal lawsuit challenging Texas' restrictive abortion law.

AUSTIN, Texas (CN) — The Texas Supreme Court heard oral arguments Thursday in the federal case against a state law that bans abortions after six weeks of pregnancy.

The all-Republican court has been tasked by the Fifth Circuit to decide whether Texas medical licensing officials are the proper defendants in a lawsuit filed by several abortion providers in the state. 

The Texas Heartbeat Act, also referred to as Senate Bill 8, prohibits a person from terminating a pregnancy once a fetal heartbeat is detected, or around six weeks of pregnancy, before many women even know they are pregnant.

The law puts enforcement power in the hands of private citizens, who can bring civil lawsuits against anyone who aids and abets an illegal abortion. Defendants could include the abortion clinic physician and staff, anyone who provided a person with money to pay for the procedure or those who provided transportation to a clinic. Plaintiffs can be awarded a minimum of $10,000 and attorney fees if successful in their suit. 

On behalf of the state, Texas Solicitor General Judd Stone kicked off oral arguments Thursday by emphasizing that state lawmakers made it clear that no state official may enforce SB 8.      

“The legislature has directed that no enforcement of that prohibition may be taken or threatened by the state,” said Stone. “Plaintiffs' indirect enforcement theory cannot supplant the legislature's clear no-enforcement directive.”

“Eight justices on the Supreme Court did not think that,” said Chief Justice Nathan Hecht, referring to the nation's top court allowing the claims against licensing officials to go forward.

Stone argued that a majority of the justices were “making a guess” in their decision. 

Justice Evan Young asked the solicitor general if physicians would have to report to the Texas Medical Board if they were sued under SB 8. Stone proposed that the board craft a rule stating that they do not enforce SB 8, and therefore the physician would not be required to report such information. 

Marc Hearron, senior counsel at the Center for Reproductive Rights, argued for the plaintiff abortion providers. He opened his remarks by asserting that medical licensing officials can indirectly enforce SB 8 through disciplinary action against doctors and nurses.

In their questioning of Hearron, the justices focused primarily on how a medical licensing official would go about enforcing SB 8. The attorney explained that due to provisions in the state's Health and Safety Code and Occupations Code, licensing officials can face disciplinary action if they “commit a prohibited practice.”  

In response to a question about doctors having to report to the medical board, Hearron said “the solicitor general has now taken a position that it is unclear whether a doctor who doesn't report a lawsuit that is filed...the state might still be able to take enforcement action.”

“If we adopt the solicitor general’s reading, it seems like we would allay all of your concerns,” Young said.

Hearron responded that if the court were to agree with the state, then his clients would have the certainty that licensing officials would not take any action against physicians. However, if the justices were to decide that licensing officials do have the ability to enforce SB 8, the plaintiffs ask that they be enjoined from using such authority. 

In a call with reporters after the hearing, Hearron said the federal case against SB 8 does not stand a chance of securing an injunction that would stop it from being enforced, and the case would end altogether if the Texas Supreme Court rules licensing officials cannot enforce the ban.

Since the law took effect on Sept. 1, 2021, abortion clinics in Texas have ceased offering the procedure out of fears of costly litigation that would force them to close. This has driven people in search of terminating a pregnancy into neighboring states. 

The U.S. Supreme Court denied an emergency motion filed by abortion providers to enjoin the law before it took effect in September. A federal lawsuit was filed by the clinics and the Department of Justice, which led to the court taking up the case and issuing its decision in December. The court dismissed the Justice Department’s and the providers' claims against state officials and judges, finding they were not proper defendants.

Justice Neil Gorsuch wrote the majority opinion and said the case against licensing officials may proceed since they are responsible for taking action against anyone who violates Texas’ Health and Safety Code.

The high court then remanded the case back to the Fifth Circuit, where a panel of three judges ruled 2-1 to have the Texas Supreme Court decide whether licensing officials can enforce SB 8.  

The state court justices did not indicate when they would issue a ruling.

In addition to the federal case heard Thursday, a state court case filed by Planned Parenthood clinics against anti-abortion group Texas Right to Life is in the appeals process after a judge ruled that the law was unconstitutional but did not enjoin its enforcement. Abortion providers sued the organization to stop it from filing suits against them under the new law.

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