Opponents of the Texas Abortion Ban Still Have Ways To Challenge It

Although a Texas Supreme Court ruling ended the main challenge to the law, other cases could ultimately block its enforcement.


The U.S. Supreme Court ruled last December that Texas abortion providers could not sue judges or court clerks to block enforcement of the state's strict limits on the procedure. But the justices left the door open to claims against state medical regulators who might indirectly enforce S.B. 8, which prohibits abortion after fetal cardiac activity can be detected. The Texas Supreme Court has now definitively closed off that option as well, ruling that S.B. 8 does not allow regulators to discipline health care providers for violating the law.

S.B. 8 authorizes "any person," with the exception of state officials, to sue "any person" who performs or facilitates a prohibited abortion. The law promises successful plaintiffs at least $10,000 in "statutory damages" per violation (which can be multiplied by naming several defendants for any given abortion), plus reimbursement of their legal expenses. This novel approach was designed to prevent pre-enforcement review of S.B. 8 by federal courts, which otherwise would have stopped the law from taking effect because its ban on "pre-viability" abortions is plainly inconsistent with Roe v. Wade and its progeny.

That strategy worked: S.B. 8 has been in effect since the beginning of September, causing Texas abortion clinics to dramatically curtail their services. The number of abortions performed by Texas clinics has been cut in half. But the law's net impact has been much smaller than those numbers suggest, since many Texas women have traveled to clinics in other states or used abortion pills to terminate their pregnancies at home. The more consequential effect of S.B. 8 may prove to be its influence on legislators in other states, who now have an effective strategy for targeting all sorts of constitutional rights they view as inconvenient.

In a 23-page ruling issued on Friday, the Texas Supreme Court noted that S.B. 8 says its provisions "shall be enforced exclusively through the private civil actions." That language, the court says, precludes even indirect enforcement by state officials who regulate medical professionals such as physicians, nurses, and pharmacists.

Ordinarily, those regulators could bring disciplinary actions against licensees who violate Texas law, including restrictions on abortion. But the Texas Supreme Court, which the U.S. Court of Appeals for the 5th Circuit asked to resolve the issue, concluded that S.B. 8 creates an exception to that general rule.

"We cannot rewrite the statute," the court said. "By unambiguously declaring a [private] civil action to be the exclusive means to enforce the Act's requirements, these provisions deprive the state-agency executives of any authority they might otherwise have to enforce the requirements through a disciplinary action."

That ruling effectively puts an end to the federal lawsuit filed by Whole Woman's Health, which operates several abortion clinics in Texas. But it does not foreclose other attempts to block S.B. 8 in state and federal courts.

David Peeples, a state judge in Travis County, is overseeing 14 consolidated lawsuits challenging S.B. 8. The day before the U.S. Supreme Court's decision in Whole Woman's Health v. Jackson, Peeples ruled that the law's enforcement mechanism was unconstitutional. While Peeples did not enjoin enforcement of S.B. 8, he concluded that it was inconsistent with the Texas Constitution's standing requirements for civil actions, the separation of powers, and the right to due process. The state has appealed that decision.

Like other critics of the law, Peeples also noted that it offers a blueprint for politicians who could use the same strategy to evade judicial review of restrictions on other rights that the U.S. Supreme Court has said are protected by the Constitution. "In our polarized country," Peeples warned, "other states with different electorates and different priorities might decide to use these procedures to put other people out of business or to stamp out behavior they dislike intensely, including other areas of life covered by constitutional law. The undesired activities targeted in other states, of course, might be different."

A state might, for example, "copy the procedures and replace the abortion provisions with language that forbids openly carrying guns, or with language requiring trigger locks on all guns." A state "might use the procedures to enforce discrimination laws against bakery owners who will not, as a matter of conscience, decorate a cake with a message that is offensive to them or that violates their religious beliefs." Legislators could attack constitutionally protected speech by "adapt[ing] these procedures to single out climate change deniers, or those who utter 'hate speech,' or American History teachers who teach X or don't teach X." They could even chill the speech of pro-life activists by authorizing lawsuits against them.

Needless to say, conservatives who applaud S.B. 8 because they oppose abortion won't necessarily like the results when people with different views use the same approach to promote their agendas. "We are a diverse and creative people, and it seems naïve to hope these procedures will be cabined voluntarily once they are upheld," Peeples wrote. "A new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties, where the judges would do their constitutional duty and enforce the law. Pandora's Box has already been opened a bit, and time will tell."

These concerns are not merely theoretical. Two days after Peeples' ruling, California Gov. Gavin Newsom, a Democrat, expressed interest in pursuing legislation that would take a page from S.B. 8 by authorizing private lawsuits against people who sell "assault weapons" or DIY gun kits. "If states can now shield their laws from review by the federal courts," Newsom said, "then California will use that authority to protect people's lives, where Texas used it to put women in harm's way."

In addition to the cases in Peeples' court, lawsuits authorized by S.B. 8 present opportunities to challenge the ban. Last September, San Antonio gynecologist Alan Braid, whose abortion clinics joined the other plaintiffs in Whole Woman's Health v. Jackson, announced that he had deliberately violated the law. Three plaintiffs have filed S.B. 8 lawsuits against Braid, who can respond by arguing that the law is unconstitutional. Pro-life activists are contemplating S.B. 8 lawsuits against organizations that help Texas women pay for abortions, which would provide another chance to challenge the law.

If S.B. 8 plaintiffs prevail in any of these cases, the final state judgment could be appealed in federal court. But that option would not address the law's current chilling effect on abortion services, and it could run into trouble if the Supreme Court upholds Mississippi's ban on abortion after 15 weeks of gestation, as it seems inclined to do. While S.B. 8, which prohibits abortion after about six weeks, is much stricter than Mississippi's law, it is not clear what constitutional limits on abortion restrictions (if any) will remain in place after the Court rules in the Mississippi case later this term.

George Mason law professor Ilya Somin thinks opponents of S.B. 8 may still have some options for pre-enforcement review in federal court. Even if state medical regulators can't be sued, he suggests in a Volokh Conspiracy post, Justice Neil Gorsuch's reasoning in allowing for that possibility "may well permit lawsuits against state officials tasked with enforcing state court judgments, such as sheriffs." Somin notes that such defendants "are not judges, and therefore not subject to the Supreme Court's precedents limiting injunctions against state court proceedings." He adds that "there may be other nonjudicial state officials involved in the enforcement of judgments" who could be sued.

"Opponents of SB 8 would do well to search out all such potential defendants, and file cases against all of them," Somin writes. "At least two of the justices who joined Gorsuch's opinion [Brett Kavanaugh and Amy Coney Barrett] expressed grave concerns, in oral argument, about the threat SB 8 poses to constitutional rights." Since "the three liberal justices and Chief Justice John Roberts have already indicated…that they are open to allowing lawsuits against state court clerks," he says, "only one of the 'Gorsuch four' needs to switch in order to defeat the SB 8 ploy in a future case."