Texas abortion law: what to know about the developing state’s legal battle

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But the effort has a broader end: securing a Texas Supreme Court ruling repealing the law.

The same procedural issues that undermine the federal legal fight could throw a wrench in the bet of state courts. But a Texas Supreme Court ruling against the law would nonetheless send a valuable signal that could narrow its scope.

Texas law, SB8, gives any private citizen in the country the power to bring a civil action in Texas state courts against abortion providers accused of violating the ban. This opens the clinics – and anyone else accused of “helping and encouraging” women to have abortions after about six weeks – to the threat of endless litigation that could lead them to bankruptcy. So clinics and groups that facilitate access to abortion are launching a counteroffensive in state courts, rather than simply waiting for their federal challenges to the law to unfold.

In the short term, abortion providers hope to protect their workers from individual anti-abortion activists who would seek to exercise the six-week ban against them. Their success so far has been limited. It is difficult, if not impossible, to obtain a temporary order that would largely block the application of the ban. So far, abortion rights advocates have depended on a one-to-one strategy, seeking court orders against the Texas Right to Life group and selecting the activists who have spoken most in favor of the application. of the law.

These cases, however, could provide a vehicle for a larger Texas Supreme Court decision striking down important parts of the law. This result may not be enough to fully protect abortion providers from the impacts of the ban, but it may provide some relief while the federal lawsuit challenging the law has been authorized – by the United States Supreme Court and a federal appeals court – to stagnate.

“Even though these lawsuits cannot go all the way to block this at the state level, there is still value,” said Stephen Vladeck, CNN Supreme Court analyst and university professor. from Texas-Austin School of Law. “Even though (abortion providers) may not get all the relief they need, it helps to get more relief than none.”

What can state courts do now?

Texas law – which prohibits abortions after detection of fetal heart activity – appears to be directly at odds with the 1973 United States Supreme Court ruling. Roe v. Wade decision and subsequent cases affirming this decision. These federal cases enshrined constitutional protection for abortion before viability, which is approximately 23 weeks pregnant.

Yet federal court challenges citing those precedents have yet to block the Texas law, which went into effect last week, due to its clever design. Federal courts were quick to block strict abortion laws that impose criminal or regulatory penalties, as they can target those orders at specific government officials responsible for implementing the penalties. But Texas’ ban enforcement mechanism – giving any private citizen the ability to sue clinics and the like – has blurred that typical anti-law avenue, and federal justice is still weighing that procedural issue.

Meanwhile, clinics and other abortion rights advocates have already obtained temporary orders from state courts to prevent some anti-abortion activists from bringing SB8 civil actions against them.

The first round of temporary restraining orders was obtained early last week, just before the law came into effect. The orders prevented Texas Right to Life from enforcing the law against the Bridge Collective, a group that facilitates transportation to clinics, as well as two individual attorneys who help women access the proceedings.

“It was very important for us to protect our volunteers, and we felt that the best way to do that was to proactively attack this bill, both with the play (temporary restraining order) and the lawsuit, ”Kristina Arike, treasurer of the Bridge Collective, told CNN last week.

Texas Right to Life scoffed at the effort, which also included a temporary restraining order obtained by Planned Parenthood clinics against the group. Her court documents indicated that as long as clinics appear to be complying with the six-week ban – and so far no clinic has publicly sought to violate it – her activists have no plans to sue. prosecutions to enforce the ban. against them.

Jonathan Mitchell, the group’s lawyer in the case, declined to comment on the record of this story. America First Legal Foundation – a legal advocacy group led by former Trump White House aide Stephen Miller – is also mobilizing in defense of anti-abortion activists.

In a statement last week, Texas Right to Life warned that “Planned Parenthood can sue us, but they cannot sue all Texans.”

“As long as they perform abortions, they are responsible under the Texas Heartbeat Act which saves lives,” the statement said.

Abortion funds attorney Elizabeth Myers told a Travis County district judge last week that an order against Texas Right to Life would send a signal that would discourage others considering suing clients under SB8. The abortion funds would also seek restraining orders against these people if they file a lawsuit, Myers told the judge.

Where will the state’s judicial affairs go next?

Next Monday there will be court hearings in cases brought by Planned Parenthood and abortion access groups to consider whether the temporary restraining orders against Texas Right to Life – which expire after 14 days – should be converted. into ordinances that would last while the cases are being argued.

Once this issue is decided, the case will turn to the merits of what abortion clinics and funds claim: that SB8 violates the Texas Constitution. This issue will ultimately be decided by the Texas Supreme Court. The appeal process to this tribunal will take at least weeks, if not months, although abortion rights advocates hope the process will be expedited to prevent it from taking years.

Lawsuits brought by the abortion funds target the ban’s enforcement mechanism, alleging that it violates several due process protections in the Texas Constitution as well as its protections for free speech. Some of the abortion access organizations – especially those not involved in the main federal lawsuit – are also filing requests for freedom of expression and equal protection under the U.S. Constitution in their litigation in the courts. of state.

“The ultimate goal is a declaratory judgment that would be issued by the Texas Supreme Court, concluding that the law, SB8, is unconstitutional,” Jennifer Ecklund, another abortion fund lawyer, told CNN.

Such a decision by the Texas Supreme Court, Ecklund said, would then force any lower court to dismiss a private enforcement action brought by anti-abortion activists against clinics or their allies under SB8.

The Planned Parenthood lawsuit makes similar arguments while launching a frontal attack on the abortion ban. His court documents claim that the six-week ban violates provisions in the Texas Constitution that protect “privacy from unreasonable intrusion and unwarranted interference with personal autonomy.”

“We are ultimately seeking a final court decision that declares SB 8 unconstitutional statewide in order to restore access to abortion to the millions of Texans who need it,” Julie Murray told CNN, Senior Counsel for the Planned Parenthood Federation of America. A declaration.

Will a Texas Supreme Court judgment end the legal battle?

It is still not clear whether such a move would be enough to discourage any private citizen from taking SB8 coercive action against the clinics. The ban is structured to incite even the most frivolous enforcement actions brought under the law. Abortion clinics are prohibited from being reimbursed for their attorneys’ fees even if they win SB8 enforcement cases, so those who sue will not suffer any consequences from cases that are automatically dismissed.

“And that’s where the rub lies: How does a vendor avoid an endless system of these lawsuits, even after the Texas Supreme Court has declared SB8 unconstitutional?” Vladeck asked.

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