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After Supreme Court’s ruling on Texas law, abortion-rights supporters see no clear path to victory

By Reese Oxner and Eleanor Klibanoff, The Texas Tribune

After Supreme Court’s ruling on Texas law, abortion-rights supporters see no clear path to victory” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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In its anticipated ruling on Texas’ controversial abortion ban last week, the U.S. Supreme Court expressed significant concerns with the law’s unique enforcement mechanism, which empowers anyone to sue those who violate the statute. But ultimately the majority refused to block its implementation and instead limited how the legal challenge can proceed.

The court’s splintered opinion will define the next chapter in the legal saga, but after the smoke cleared Friday, one thing became increasingly clear: For the abortion providers fighting the restrictions, there might not be a lot left to win.

“The Supreme Court has ruled out the most promising claims that would have stopped the vigilante lawsuits in their tracks,” said Julie Murray, one of the lead attorneys for abortion providers in the case. “A significant portion of the lawsuit was foreclosed by the Supreme Court decision and that’s going to have a really substantial negative impact on access going forward and on Texans.”

The Supreme Court ruled that the providers could continue challenging Texas’ law but weakened their legal strategy by removing nearly all of the defendants in the case, leaving abortion supporters with few options for a viable lawsuit. And legal experts say the state might be able to easily counter what’s left of the suit by amending the law.

On Thursday, the high court delivered another blow to abortion providers by remanding the case to the 5th Circuit Court of Appeals, rather than a district court, making it more likely that the ban on abortions after about six weeks of pregnancy will remain in effect.

Now there are no clear avenues for a major victory on behalf of abortion rights advocates, and the ones that remain will likely be hard fought and wind slowly through the court system by way of appeals.

“Appeals can take many months, if not years. And so the the real impact of the Supreme Court’s decision last week was to essentially disregard the ongoing impact on the ground for Texans in need of abortion,” Murray said. “[It is] ultimately going to harm patients and their families — potentially for many years.”

Abortion providers have fallen in line with the law out of fear of financial ruin, making the ban one of the greatest wins for anti-abortion advocates in recent history. In September, the first month the law went into effect, the number of procedures plummeted by half compared to the same month last year, according to a study from the University of Texas at Austin.

Amy Hagstrom Miller, president of Whole Woman’s Health, which operates four clinics in Texas and is the lead plaintiff in the providers’ lawsuit, warned last week that the current volume of services is not enough to keep clinics open in the long term.

“Staying open is not sustainable if this ban stays in effect much longer,” Hagstrom Miller said. “We are grateful for the donors and foundations and folks who have been supporting us in the interim … but the future looks bleak if we can’t get some justice here.”

Who can opponents of the law sue?

The law, commonly referred to as Senate Bill 8, allows private citizens to sue those who help others get an abortion after around six weeks of pregnancy, and if the lawsuit is successful, plaintiffs get at least $10,000 in damages. It also bars Texas officials and law enforcement from enforcing the statute.

This novel combination has made the law notoriously difficult to topple in court. Legal challenges to a law usually involve suing government officials and a request to stop them from enforcing it. But by offloading enforcement to private citizens and limiting who can enforce the restriction, legal opponents have struggled to name defendants that could be sued to stop the law. The Supreme Court’s decision Friday made the number of possible defendants even smaller.

In its ruling, the court cited sovereign immunity — which protects government entities from some civil lawsuits — to rule that the providers cannot sue local government officials, including court clerks.

Targeting court clerks was a key legal strategy in the providers’ challenge. The goal was to stop clerks from receiving and processing suits filed under the abortion law. The tactic was previously used when the Biden administration asked a federal district judge to temporarily order courts to not accept any lawsuits related to the abortion law. That order lasted for only two days before Texas successfully appealed. The Supreme Court ended the Biden administration’s lawsuit on Friday, saying the U.S. lacked the legal standing to intervene.

Now that the strategy is off the table, legal experts agree that it looks more unlikely than ever that abortion providers can prevent lawsuits from being filed in the first place.

The Supreme Court did allow abortion providers to name state licensing officials as defendants, who could potentially threaten to revoke the licenses of medical professionals who violate the abortion law. But Erik S. Jaffe, a Washington, D.C.-based lawyer who represents a gun rights group that opposes the law, said Texas could just amend the law to explicitly prohibit the licensing officials from enforcing it — therefore making them unsuitable defendants as well.

The road ahead

It typically takes 25 days for a case to be returned to a lower court after a Supreme Court decision, but abortions providers requested that process be expedited.

In that filing, providers asked for the case to be handed back to U.S. District Judge Robert Pitman, who had previously stopped enforcement of the law. Attorneys for the state argued it should be returned to the 5th Circuit Court of Appeals, and said they intend to ask that court to throw the remaining legal challenge to the Texas Supreme Court.

The Supreme Court on Thursday agreed to expedite the filing, but sided with the state and sent the case to the 5th Circuit.

“We have some indication of what those two courts think about the validity of the law, whether it can be challenged at all and how much of a problem it is to allow it to remain in force,” said University of Michigan law professor Leah Litman. “With the 5th Circuit, everyone knows they’re not going to enjoin the law.”

That means the ban on abortions after about six weeks of pregnancy is likely to remain in effect in Texas as the appeals process proceeds.

Despite the order to expedite the 25-day waiting period, Litman said, “nothing about this is going to be expedited.”

If the 5th Circuit agrees with the state’s request to throw the remaining case to the Texas Supreme Court, the state court would then get to decide whether the challenge can proceed, which could spark more legal battles.

“This question…is going to draw the case out, meaning the law will likely remain in effect and out of the district court for the foreseeable future,” said Litman.

A state judge has already ruled that the law is unconstitutional, but this is a separate question, narrowly focused on whether it can be blocked through a challenge against the licensing officials.

In an emailed statement, Murray said that Planned Parenthood was “disappointed that this case will not immediately return to the district court so that it can finally rule on the constitutionality of S.B. 8 and order appropriate relief on the narrow claims that the Supreme Court let go forward.”

“Patients and providers urgently need relief from S.B. 8, and the state is yet again blatantly attempting to introduce further delay,” she added. “We will call on the court of appeals to send the case back to the district court as soon as possible, consistent with the Supreme Court’s order.”

Murray said now only the state’s and nation’s highest courts realistically have the power to end the enforcement of the law.

“What we need for full, robust relief is either a decision from the Texas Supreme Court or the U.S. Supreme Court saying that SB 8 is unconstitutional,” she said.

But the path to get to that point could take months or even years. And Texas has a lot of control over which cases are escalated to one of the high courts.

To keep the law in place, attorneys for the state could simply not appeal lost cases or abandon them if it looks like they might go to the Supreme Court, Jaffe said.

“Nobody on the Texas side of things would be stupid enough, I wouldn’t think, to let [a suit under the law] go all the way up to the U.S. Supreme Court, much less [to] the Texas Supreme Court, unless they were darn confident of the answer,” Jaffe said.

The abortion providers’ challenge, he added, “is doomed.”

Disclosure: Planned Parenthood and the University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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