By Eleanor Klibanoff, The Texas Tribune
“Narrow challenge to Texas’ abortion law argued before state Supreme Court” 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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The Texas Supreme Court got its first chance to weigh in on the state’s new abortion law Thursday, hearing arguments in a narrow challenge to the restrictions, which have blocked access to abortions after about six weeks of pregnancy for nearly six months.
This hearing before the nine-justice high court is an interim step in the ongoing federal lawsuit brought by abortion providers trying to challenge the law. The 5th U.S. Circuit Court of Appeals asked the Texas Supreme Court to weigh in on a question of state law before the appeals court proceeds with its own ruling in the case.
The law, passed as Senate Bill 8, is designed to evade judicial review, a goal at which it has so far been successful. It specifically precludes state officials from enforcing it, instead deputizing private citizens to bring civil lawsuits against anyone who “aids or abets” an abortion after cardiac activity is detected in an embryo, usually around six weeks of pregnancy.
Lawyers representing the abortion providers are trying to prove that the state itself actually will enforce the law, which would open a legal window for them to seek an injunction on some aspects of the law. They argued that the law is enforced by court clerks who docket the lawsuits, judges who hear them, the attorney general and others.
The U.S. Supreme Court threw out most of those arguments in a December ruling that allowed the law to remain in effect. The justices did allow one question to proceed, over whether state medical licensing officials play a role in enforcing the law.
Those agencies would potentially be responsible for disciplining or revoking the licenses of doctors, nurses and pharmacists who violate the law; an injunction would stop them from doing so, but would leave the crux of the law in place.
The U.S. Supreme Court threw this question back to the lower federal courts. The 5th U.S. Circuit Court of Appeals then threw it to the Texas Supreme Court for an interpretation of state law, a move the abortion providers decried as adding unnecessary delays.
At Thursday’s hearing, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”
The justices questioned whether doctors might be obligated by the rules of the state’s medical licensing board to report any lawsuits brought against them for violating the abortion law, and whether that would constitute state enforcement.
Stone said the board could simply make a rule saying that it has no role in enforcement, so even if a report was made, it would be precluded from taking further action, like revoking a doctor’s license.
That argument, and the narrowness of the challenge more generally, presented a problem for lawyers representing the abortion providers, who found themselves in the tricky position of arguing against themselves.
Their current argument is that the state’s enforcement authority, through medical licensing officials, contributes to the chilling effect on abortion providers. If the state Supreme Court decides that medical licensing officials do not have enforcement authority — or the boards add language to their rules confirming that — that chilling effect is lifted.
Justice Evan Young asked Marc Hearron, senior counsel for the Center for Reproductive Rights, whether that would be a win for the abortion providers.
“If you were to do that, that would, at a minimum, provide our clients some certainty,” Hearron said. “It would, however … essentially end our challenge.”
Without state enforcement, there is no one to bring a constitutional challenge against, and the law would remain in effect.
The court has not said when it will issue its ruling.
Texas Right to Life legislative director John Seago said before the hearing that while the group hopes the Texas Supreme Court issues a “more clear, true reading” of the law, it is not too worried about the outcome of this hearing.
“Clearly, the Legislature did not intend these state agencies to play any role in enforcing SB 8,” he said. “So if the abortion industry wins, if they get exactly what they want. If there’s an injunction against those state agencies, all that means is we end up back to what the Legislature intended in the first place.”
Abortion providers and advocates are fighting the law on several fronts, including in state court, where a judge in Austin declared the law unconstitutional. He did not enjoin the law from being enforced, though, and that ruling is being appealed.
It is possible that case will eventually return to these same chambers. The justices acknowledged that Thursday’s hearing is unlikely to be the last time they are asked to rule on this unprecedented new law.
Thursday’s case before the Texas Supreme Court is a question of whether the abortion providers can bring a federal “pre-enforcement” challenge.
If that option is foreclosed to them, one option would be to do what a San Antonio doctor did immediately after the law was passed: violate the law, get sued and challenge the statute on its merits in court.
Stone, the solicitor general, indicated that the state is preparing for that eventuality — and expects those challenges to make it all the way back to the state Supreme Court, perhaps a more favorable venue than the federal courts.
“The point … was specifically to preclude federal pre-enforcement challenges,” Stone told the court. “The state courts and this court are equally competent to determine both the matter of state law and federal law as to any applicable … defenses, which this Court undoubtedly will be called to do when an appropriate case comes to it.”
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/02/24/texas-abortion-law-supreme-court/.
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