By Reese Oxner, The Texas Tribune
Sept. 30, 2021
“The Justice Department will argue against Texas’ abortion law Friday. Here’s what you need to know.” 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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Texas’ near-total ban on abortions became law Sept. 1 and quickly became the target of several lawsuits aiming to stop its enforcement.
But as those legal battles continue — with one case the subject of a federal court hearing Friday — Senate Bill 8 still stands.
Abortion providers, doctors, women’s rights groups and even the U.S. government are battling to overturn the law, which bans the procedure after approximately six weeks of pregnancy — before many know they’re pregnant. The nation’s highest court has taken up the law once — though it didn’t weigh in on its constitutionality — and multiple lawsuits are pending. A federal lawsuit filed by the Biden administration will hold a hearing Friday in a U.S. District Court.
Abortion remains a constitutional right under Supreme Court precedent. But the structure of SB 8 allows it to skirt precedent by offloading the enforcement of the statute from government and law officials to private citizens.
By empowering anyone in the nation to file lawsuits against a provider or person who aids someone in getting an abortion and barring state enforcement, SB 8 makes it difficult to name the right defendants in the lawsuits that would block enforcement of the law.
In a 5-4 vote, the Supreme Court decided to not block the law on the day it went into effect. The court cited procedural difficulties and tossed that legal case back to the 5th U.S. Circuit Court of Appeals, where it currently sits. But justices stressed that the court was not ruling on the statute’s constitutionality, namely not overruling Roe v. Wade.
Here are where the various challenges to the law stand.
UNITED STATES OF AMERICA V. THE STATE OF TEXAS
The Department of Justice sued Texas on Sept. 9 in an attempt to block the law’s enforcement after the Biden administration vowed to take action. Federal and state attorneys will present arguments on Friday.
The case is being overseen by U.S. District Judge Robert L. Pitman, a 2014 Obama nominee, in the U.S. District Court for the Western District of Texas.
The Justice Department says the law was deliberately constructed to flout constitutional rights by making it difficult to challenge in court.
“It is settled constitutional law that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’” U.S. attorneys stated in the lawsuit. “But Texas has done just that.”
But the state responded that just because the law is difficult to challenge judicially doesn’t mean it should be overturned.
“If the Department of Justice wants to expand its authority, it should direct its requests to Congress, not this Court,” Texas’ filing states.
Josh Blackman, a constitutional law professor at South Texas College of Law Houston, says that while the federal lawsuit has distinct differences from other legal challenges to the abortion law, it’s unlikely to block the near-total ban.
The Justice Department can sue states without regard to sovereign immunity, which grants protections for state agencies against lawsuits. A separate lawsuit filed by abortion providers named a judge as a defendant, which can draw questions of sovereign immunity.
The Justice Department’slawsuit claims the state law interferes with the federal government’s ability to carry out its duties in some circumstances. Blackman said it would be an uphill climb to demonstrate that in court and even if it did, it wouldn’t likely justify blocking the entire law.
Still, Blackman said Pitman likely would rule in favor of the Justice Department. But Pitman’s ruling would almost certainly not be the final word on the matter. The state would likely appeal and send the case to the 5th U.S. Circuit Court of Appeals, where a suit filed by abortion providers case currently sits. The 5th Circuit is arguably the nation’s most conservative appeals court.
At that point, the Supreme Court could also be asked to step in on this suit, but Blackman said he believes the justices will make a similar ruling to the one it made earlier and not decide the law’s constitutionality.
Legal experts have varied forecasts for how the case will play out — if they’ll make a prediction at all.
Because Blackman doesn’t think the Supreme Court will eventually deem the law unconstitutional, he thinks it is here to stay.
“This law is not killable,” he said. “It’s like a hydra, you can’t kill it — you chop off one head and two heads grow in its place.”
However, Javier Oliva, a practicing law professor at The University of Texas at San Antonio, said he believes the law will be overturned as a result of the Justice Department lawsuit.
He thinks the law could be proven to put an undue burden on women who cannot get timely treatment or those who have to travel across state lines — and he thinks those arguments could be used to block the law’s enforcement until its constitutionality is decided.
John Seago, legislative director for the prominent anti-abortion group Texas Right to Life, which helped draft SB 8, has called the Justice Department lawsuit “the most credible threat at this point” to the abortion law.
Lauren Stiller Rikleen, a board member of Lawyers Defending American Democracy, said the Supreme Court’s decision to not block the law temporarily while the courts considered its constitutionality shocked her and other law experts.
Now, she’s unsure what to expect.
“No one would have thought that the Supreme Court would have allowed this law to stand while all these appeals were being undertaken,” she said. “I think you have to give up predicting on the statute after the Supreme Court’s ruling on Sept. 1.”
INDIVIDUAL LAWSUITS AGAINST TEXAS DOCTOR
At least two lawsuits have been filed against Dr. Alan Braid, a San Antonio OB/GYN who admitted in a Washington Post column that he performed an abortion illegal under the state’s new statute.
The lawsuits could test the law in state courts. If appealed to the Texas Supreme Court, the justices could determine the law’s constitutionality or even block people from filing lawsuits who can’t demonstrate how they are injured by someone else getting an abortion. But many are dubious of how the all-Republican court would rule if a case were brought to them.
It’s also unclear if the individual lawsuits filed will ever be heard. Some legal experts speculate that because the two plaintiffs — both out-of-state, disbarred attorneys — cite testing the law or wanting to overturn it as reasons for the suits, they could be thrown out altogether.
The Center for Reproductive Rights, which represents Braid, did not comment on the lawsuits.
Blackman said cases brought on by private citizens could also potentially make their way to the Texas Supreme Court — which so far has not been tapped to weigh in on the law. Texas’ high court could then potentially rule that the plaintiffs empowered by SB 8 to file lawsuits are not actually injured and therefore that the lawsuits should be dismissed — or the court could block enforcement of the law altogether, he said.
ABORTION PROVIDERS SUE BEFORE LAW COMES INTO EFFECT
Abortion providers, including Planned Parenthood and Whole Woman’s Health Alliance, filed a lawsuit on July 13 aiming to block the abortion restrictions after Gov. Greg Abbott signed it into law.
Pitman is also overseeing this case. But proceedings were halted after defendants appealed to the 5th Circuit Court of Appeals — leading to a scheduled hearing being canceled just before the law came into effect.
The lawsuit sits with the 5th Circuit, which has not ended its stay. The appeals court will not hold arguments earlier than December, according to court filings from abortion providers.
The providers asked the Supreme Court to take over the case and fast-track proceedings in a rarely used procedure called “certiorari before judgment.” But Blackman says it is highly unlikely that the Supreme Court will grant this request.
He said the case likely will continue to be handled by the 5th Circuit, at least for now.
LAWSUITS FILED IN TRAVIS COUNTY DISTRICT COURT
At least 14 lawsuits have been filed in Travis County District Court against Texas’ abortion law, but a panel of judges indefinitely paused them on Sept. 23 upon a request from Texas Right to Life, a prominent anti-abortion group.
Planned Parenthood, a plaintiff in one of the cases, asked the all-Republican Texas Supreme Court on Wednesday to step in and resume the cases. The organization was granted a request to temporarily block Texas Right to Life from suing them over the new abortion law and a hearing had been scheduled for Oct. 8 before the suit was paused.
FEDERAL LEGISLATION
The U.S. House last week passed a reproductive rights bill that would nullify Texas’ controversial near-total abortion ban by codifying the right to an abortion into federal law. The legislation is unlikely to pass in the Senate, and therefore, unlikely to become law.
U.S. SUPREME COURT TO HEAR MISSISSIPPI CASE
Many eyes are on another abortion-related case in front of the Supreme Court, which is set to hear arguments on Dec. 1. A new law in Mississippi aiming to ban most abortions after 15 weeks was temporarily blocked by a district court in 2018, which the 5th Circuit upheld the following year.
Through this case, justices could overturn Roe v. Wade, the 1973 decision that established the constitutional right to an abortion. If the precedent is overturned, 11 states, including Texas and Mississippi, have “trigger laws” that would automatically go into effect to ban abortions in their communities.
Disclosure: Planned Parenthood and University of Texas at San Antonio have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/09/30/texas-abortion-law-legal-challenges/.
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