Texas Supreme Court deals final blow to federal abortion law challenge

The Texas Supreme Court dealt a final blow to abortion providers’ federal challenge to the state’s latest abortion restrictions Friday.

The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.

The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

The law is designed to evade judicial review, a goal at which it has been largely successful so far. Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.

The U.S. Supreme Court disagreed with all of those arguments but one, allowing a challenge against the medical licensing officials to proceed. That case then went back to the 5th U.S. Circuit Court of Appeals, which sent it to the Texas Supreme Court to weigh in on.

In a hearing last month, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

On Friday, the justices issued a ruling that seemed to agree with Stone’s “ordinary English interpretation” of the law.

“The Court concluded that Texas law does not authorize the state-agency executives to enforce the Act’s requirements, either directly or indirectly,” they wrote.

Abortion advocates, including those who brought this challenge, were unhappy with the ruling.

“We have been fighting this ban for six long months, but the courts have failed us, Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. "The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans. Where will Texans go then?"

Nancy Northup, president and CEO of the Center for Reproductive Rights, also issued a statement. "The courts have allowed Texas to nullify a constitutional right," she said. "We will continue to do everything in our power to right this wrong.”

Meanwhile, anti-abortion groups cheered the court's decision.

"The court recognized what we already knew: this law is constitutional," said Chelsey Youman, state director and national legislative advisor with Human Coalition Action, in a statement. "It is the most successful piece of pro-life legislation in 50 years and should be replicated everywhere in states that are serious about rescuing pre-born lives."

There are other ongoing challenges to the law, including a multi-district litigation where a state district judge found the law to be unconstitutional. That case is under appeal.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/03/11/abortion-texas-supreme-court/.

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