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Texas Supreme Court shuts down challenge to restrictive abortion law

The Texas Supreme Court ruled Friday that medical licensing officials cannot enforce the state’s six-week ban on abortions, ending a federal challenge to the controversial law.

After the U.S. Supreme Court allowed abortion providers' case against licensing officials to continue and remanded the case back to the Fifth Circuit, the New Orleans-based appeals court asked the all-Republican Texas high court if the licensing officials can enforce the state’s near-total abortion ban.

In answering no, the federal case comes to an end since licensing officials were the last remaining defendants in the suit.

“Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law," Justice Jeffrey Boyd wrote in the court's 23-page opinion.

He added, "Based on these provisions, we conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly.”

Texas Attorney General Ken Paxton, a Republican, took to Twitter to applaud Friday’s ruling.

“Today I secured a major victory in the Texas Supreme Court,” he wrote. “This measure, which has saved thousands of unborn babies, remains fully in effect and the pro-abortion plaintiffs’ lawsuit against the state is essentially finished.”

The Center for Reproductive Rights acknowledged the end to the lawsuit it helped bring. 

“Today’s ruling will result in dismissal of the remaining portion of the challenge to the six-week ban, meaning SB 8 will likely remain in effect for the foreseeable future,” the group said.

Nancy Northup, the group’s president and CEO, said in a statement that the ban has gone unchecked by the courts.

“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.” 

SB 8 bans abortions after fetal cardiac activity is detected, which happens around six weeks, before many women even know they are pregnant. The law has been in effect since Sept. 1, 2021, after the U.S. Supreme Court denied an emergency request filed by abortion providers to block it.

To avoid review from the courts, lawmakers in the GOP-controlled Texas Legislature handed enforcement over to private citizens instead of the state. This provision has proved successful in insulating the law from being enjoined, with courts ruling that state officials – including the attorney general, judges and now licensing officials – are not appropriate defendants to bring lawsuits against.

Plaintiffs who successfully sue anyone who "aids and abets" in an abortion can be awarded a minimum of $10,000 plus attorney fees. This has placed the threat of costly litigation on abortion providers, forcing many of them to cease providing the procedure. Many Texans have taken to traveling out of state to get an abortion, overloading clinics in neighboring Oklahoma and Louisiana. 

While the federal case against SB 8 has come to an end, a state court case filed by Planned Parenthood clinics against anti-abortion group Texas Right to Life is in the appeals process after a judge ruled late last year that the law is unconstitutional but did not enjoin its enforcement. Abortion providers sued the organization to stop it from filing suits against them under the new law.

State District Court Judge David Peeples found in his December ruling that SB 8 violates both the U.S. and Texas Constitutions. He mainly took issue with the law’s enforcement mechanism.

“SB 8 is an unguided and unsupervised delegation of enforcement power to private persons,” the judge wrote. “This case is not about abortion; it is about civil procedure.”

Despite his ruling that the law is unconstitutional, Peeples did not enjoin enforcement of it as the federal case was pending.

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Coinciding with the Texas Supreme Court’s ruling, abortion advocates held discussions at the Austin-based South by Southwest festival. Former state Senator and Democratic candidate for governor Wendy Davis and state Representative Donna Howard, an Austin Democrat, reacted to the ruling during a discussion Friday.

“Honestly, what needs to happen is clinics are going to just have to just start flagrantly violating the law,” Davis said. “It is the only way to actually force the question to the courts that will once and for all decide that this law is unconstitutional.” 

Before running for governor, Davis held an 11-hour filibuster to block a bill that would have banned abortions after 20 weeks of pregnancy and mandate abortion clinics have admitting privileges at nearby hospitals. That law inevitably passed and in 2016 it was partially struck down by the U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt.

The nation’s highest court is expected to issue a ruling in the coming months on a direct challenge to Roe v. Wade, the 1973 decision that established a person’s constitutional right to an abortion. In that case, Dobbs v. Jackson Women’s Health Organization, the justices are considering whether a Mississippi law banning abortion after 15 weeks is valid.

With the court’s conservative majority now solidified, many believe the justices are poised to overturn nearly 50 years of precedent affirming the constitutional right to an abortion.

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The Supreme Court initially declined to block the law from going to effect but agreed in October to hear arguments from the abortion providers and the Biden administration, which is also challenging the law.