'The courts have allowed Texas to nullify a constitutional right,' Nancy Northrup, who runs the Center for Reproductive Rights, said.
On March 11, health care providers in Texas lost their last challenge to S.B. 8, Texas' six-week abortion bad, a law that was written to require enforcement not by the state but by private citizens, who it gives the power to sue anyone who "aids or abets" someone in obtaining an abortion. The decision, which came down from the Texas Supreme Court, blocks the last venue the providers had to try to blunt the force of the nation's toughest anti-abortion law.
When the U.S. Supreme Court ruled on S.B. 8 in December of last year, it largely found in favor of the state. The court let the law go forward and held that abortion providers couldn't sue most state officials, which they had tried to do with a recent lawsuit, given that the law is designed only to be enforced through legal action by private citizens, in a bounty hunter fashion. The ruling left only a very limited path forward for abortion providers. With the approval of eight of the nine Supreme Court justices, the providers would go on to try to sue state medical licensing officials in the lower courts, because those officials were given the authority to impose discipline on abortion providers who violated S.B. 8 by performing an abortion after six weeks.
In response, Texas made an unheard-of procedural request: It asked the federal appeals court reviewing the providers' lawsuit to rule on whether the state's Supreme Court should decide the case before federal litigation moved forward.
In other words, the U.S. Supreme Court told a lower federal court to rule on the issue of whether lawsuits against medical licensing officials could proceed; but rather than letting the federal court issue a ruling, Texas asked that court to let its state Supreme Court decide the case instead. It amounts to asking the Fifth Circuit to allow a Texas state court to second-guess the U.S. Supreme Court. This is such a rare occurrence that the attorney who argued the case for the state told the 5th Circuit she was unaware of any time this had ever happened.
The Fifth Circuit agreed to kick the case to the Texas Supreme Court, the Texas Supreme Court heard the case, and then it ruled that the state licensing board officials have no power to enforce the law and that the sole mechanism for enforcement is indeed private citizens suing, bounty-hunter style. The state is therefore completely insulated from lawsuits from abortion providers. As Nancy Northrup, president and CEO of the Center for Reproductive Rights, explained in a statement published by the Texas Tribune, "The courts have allowed Texas to nullify a constitutional right."
It's the kind of thing that would have seemed far-fetched and objectively unconstitutional until the capture of the Supreme Court by a conservative, anti-abortion majority.
Court watchers noted that during the oral arguments over another Supreme Court case, Mississippi's 15-week ban, all six conservative justices seemed open to upholding the ban, If they do so, that will officially dismantle the core holding of Roe v. Wade — that abortion is a decision made between a pregnant person and their doctor, and should be available until the point of viability. Further, thanks to Texas court's upholding S.B. 8, other states stand poised to pass similar laws. Tennessee just introduced a bill that would allow private citizens to enforce a ban on delivery of medication abortion pills. An Idaho bill that just passed the state Senate would allow family members of someone who has an abortion past the six-week mark to sue the abortion provider and be awarded a minimum of $20,000. Combined with other states, such as Florida, passing pre-viability abortion bans and clampdowns on access to medication abortion drugs, conservative states are moving forward with cutting off access to abortion to as many people as possible.
Published with permission of The American Independent Foundation.