Abortion

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."

NEXT: Missouri Lawmaker Behind Confusing Abortion Bill Says He'll Clarify Ban on Ending Ectopic Pregnancies

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Youre still living out the hypothetical extension yo the 2a to justify your defense of the "prenumbras." Not the same and you know it sullum. Multiple legal analysts have gone on record saying why they wouldn't be the same. You are free to go read their non sophomoric analysis.

    1. I make 85 dollars each hour for working an online job at home. QAAZ I never thought I could do it but my best friend makes 10000 bucks every month working this job and she recommended me to learn more about it. The potential with this is endless.
      For more detail …... http://jobscash.tk

    2. Shouldn't Sullum have to propose a replacement for the law before advocating its removal?

  2. 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."

    JFC, the abstract hypotheticals here give the distinct impression that either Peeples has been hit in the head with a hammer to the point that he's no longer attached to reality or that he should be.

    In any other context, it would be a joke where he says, "I don't want to name any names about who these hypothetical states may be but... *cough*IllinoisNewYorkNewJerseyColoradoCalifornia*cough*"

  3. MDL JUDGE PEEPLES' OMNIBUS ORDER

    RE: "The state has appealed that decision."

    Not so.

    The State (of Texas) is not a party and hasn't appealed. All the state defendants were nonsuited, presumably because they are immune.

    AG Paxton's office declined to show up for the hearing when Judge Peeples, sitting by assignment, heard multiple motions. Jonathan Mitchell is appealing a portion of Peeples' ruling (the denial of the Defendants' motion to dismiss under the anti-SLAPP act) on behalf of Texas Right to Life and John Seago, the pro-life org's legislative director. An agreed temporary anti-suit injunction is in effect in the interim (called temporary rather than preliminary as in federal court).

    The case on appeal is styled Texas Right to Life and John Seago v. Allison Van Stean et al. Under Texas state appellate conventions, the appellant's name goes first in the case style, not the plaintiff's name (unless the plaintiff appeals).

    The Van Stean case is the first-filed case in the trial courts below (Travis County/Austin), and was designated as the master/lead case for MDL consolidation purposes.

  4. We cannot be free unless we kill all the clumps of cells.

    1. Republican Conservangelists lack clumps of cells between the ears, and won't be missed.

  5. go, death, go!

  6. It will boil down to afluent women discreetly going out of state ( vacations, sabbaticals, "out of town projects") and the poor women will have the unwanted pregnancies. Like it or not it is a stealthy class warfare that will generate more poor for cheap labour.

    1. Right now, with the current cowardly LP straddle plank, Texas' forced Lebensborn labor legislation is generating truckloads of votes for the Democratic Party. Governor Babbitt, I'll wager, and the weed-banning bigots of the Landover Baptist Statehouse in Austin will soon recall those "examples" moronic laws make of girl-bullying politicians.

  7. There is no abortion ban in Texas. There is an abortion limit in Texas. That limit might be too stringent, even arguably unethically stringent, but it's not a ban, and the Supreme Court in Roe V. Wade declared explicitly that abortion rights are not unlimited.

    1. Diane, your post is as big a lie as Bill Clinton's quibbling about "sex". What you call a "limit" bans abortions unless they are performed before most women know they are pregnant.

  8. "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."

    Home medical/chemical abortions are only effective up to a point, they are called 'morning after' pills for a reason.

    I'll concede a six week window can be tight, I much prefer the Mississippi 15 week limit (which, it just so happens, is consistent with the vast majority of first-world/developed nations).

    Abortion is not constitutionally protected, it's inferred and accepted, but there is no Abortion Amendment. I'd love to see politicians argue in favor of abortion from conception to birth - I can't imagine the majority of Americans actually support third-term abortions on-demand. First trimester is an easy sell, second trimester is a bit dicey, but no way the majority of Americans support the idea of a woman simply choosing to abort an otherwise viable fetus because "she just isn't ready to be a mom."

    That said, Abortion for the health of the mother is a different matter, and I struggle to imagine a rape victim not realizing they are pregnant for 8 months after their attack. A 15 week window gives a college freshman the entire semester to realize they are pregnant, decide what they want to do, and do it before returning home for winter break.

    1. Don't forget Coahuila. Bullying bigotry no longer leaks from Texas into that Mexican State. Mexico is joining Argentina and Colombia. Ireland and Canada also lost all power to dragoon women into the involuntary servitude of forced reproduction. The 19th Amendment is reviving the 13th. (https://tinyurl.com/2p8w523v)

  9. Seems to me that SB8 is just the next logical step to Cali's Prop 65.

    1. It was the next logical step to lawsuits against gun manufacturers.

    2. Yup. Reverend Jim Jones Purple Kool-Ade for Jesus. Drink up, Republican fascisti. Your self-sacrifice is our gain.

  10. 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."

    I would point out that there were already private lawsuits against gun manufacturers in the 1990's and 2000's, with the express purpose of bankrupting gun manufacturers.

    S.B. 8 was based on those lawsuits, not the other way around.

    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.

    By his logic, the Westboro Baptist church has standing to sue every sheriff, every U.S. marshal, to enjoin them from enforcing a libel or intentional infliction of emotional distress judgment against them.

    1. I would point out that there were already private lawsuits against gun manufacturers in the 1990's and 2000's, with the express purpose of bankrupting gun manufacturers.

      If you take out 'express' the cases go back to the 1900s. Rightly arguable that suing a gun manufacturer for a defect doesn't constitute an attempt to chill the 2A, but shooting victims have been suing manufacturers since the 1900s and it's unfathomable that manufacturers knowingly/intentionally put guns in peoples' hands that only went off when accidentally pointed at other people.

  11. Sullum did not expect legal weed for another decade or so. This is underappreciating spoiler vote clout. People now realize that prohibition laws cause financial crashes. "Just Imagine," a 1930 movie set in futuristic 1980, features alcohol prohibition, hence, people popping liquor pills! (https://tinyurl.com/2hfe6bbp)
    The Almighty Dollar, threatened by looters and their laws, is finally turning to the Libertarian Party to rid the economy of tentacles strangling production and trade.

  12. Of course this procedure, *if used against a real constitutional right,* would have a chilling effect on that right.

    Logically, we should *first* decide the question (now finally reopened for consideration by the US Supreme Court) whether abortion is a constitutional right at all.

    If abortion isn't a constitutional right, then of course it can be chilled without setting a precedent for *real* rights.

    1. Sure, if Roe is overturned and therefore abortion isn't considered a constitutional right this will not set any chilling precedent. But then, abortion could become a criminal act so this civil enforcement could be replaced by a less cumbersome outright ban with criminal enforcement.

      To a libertarian, I think the "abortion" is irrelevant. It is the civil enforcement that may bypass judicial review that is chilling. If this law stands without Roe being overturned, it may as well be gun ownership. They will both go down in red/blue states.

  13. One takeaway from this is how congested courts causes enormous problems. Politicians have discovered that they can get whatever unconstitutional thing they want for a few months while the case winds its way through the courts. Same problem with the CDC eviction ban. And the NY COVID restrictions on churches. Since the courts are overloaded and there is no penalty for passing unconstitutional laws, there really doesn't seem to be a check on this abuse.

    1. The other part of that problem is that there are no penalties applied to the politicians that conspired to knowingly violate the Constitution. They can do it again and again, causing millions of dollars in legal fees and court costs for people to vindicate their rights in court, and neither have to reimburse those people nor face criminal prosecution for breaking the fundamental laws of our nation.

Please to post comments

Comments are closed.