This suit was filed in federal court before the state law, which was passed as Senate Bill (SB) 8, took effect. In a process called certification, the federal Fifth Circuit Court of Appeals asked SCOTX to weigh in on the intricate questions of state law in the case.
Specifically, the question that remains is whether state agencies like the Texas Medical Board have the indirect power to enforce the law. Although the text of SB 8 explicitly forbids government enforcement, the plaintiffs in the case — a group of abortion providers and supporters that includes Whole Woman’s Health, Planned Parenthood, and The Lilith Fund — claim state agencies could still revoke the licenses of doctors that perform post-heartbeat abortions or take other steps to punish SB 8 violators.
“Unless SB 8 abrogates the agency defendants’ authority, it is undisputed that they can indirectly enforce SB 8 by taking disciplinary or civil enforcement actions under other laws using violations of SB 8,” said Marc Hearron, counsel for the abortion providers and supporters.
On the other side of the argument, the state agencies maintain that they cannot punish violators. SB 8 authorizes private citizens to sue anybody besides the mother herself that performs or aids the abortion of an unborn child with a heartbeat, and Texas Solicitor General Judd Stone observed that the text calls these lawsuits the “exclusive” method of enforcement more than once.
“I think an ordinary speaker having been confronted with 3 or 4 separate, unequivocal textual commands of no [state] enforcement would not read that to include stealth enforcement through collateral mechanisms hidden somewhere else,” Stone said.
‘The irony is… if you lose here, you get what you want’
Since the plaintiffs are only asking SCOTX to resolve ambiguity about the state’s enforcement power, and the state claims it has none, more than one justice observed yesterday that both parties seem to be aiming for the same target.
“The end point that you’re both seeking seems to be the same,” Justice Brett Busby said at one point during the hearing.
Justice Evan Young went a step further, suggesting to Hearron that siding with the state would achieve the outcome Hearron claimed the plaintiffs are seeking.
“If we adopt the solicitor general’s reading, it seems like we would allay all your concerns. And you’re working really hard to make us do the opposite,” Young said to Hearron.
“If this court, now, were to say, ‘We’re going to eliminate all doubt. They [the agencies] cannot directly, indirectly, any day of the week, any day of the year [enforce SB 8],’ is that a win for you?”
Hearron said that would give the abortion providers and supporters “some certainty,” but they would oppose that outcome because it would end their lawsuit.
“That would, at a minimum, provide our clients some certainty. It would, however, end the remaining part of our challenge to Section 3 of SB 8,” Hearron said.
Justice Jeffrey Boyd pointed out that a loss for the plaintiffs at this stage — in other words, if SCOTX were to agree with Stone that the agencies lack enforcement power — would grant the plaintiffs the remedy they claim to be seeking.
“The irony is that if you were to win here, you would have to take one more step, which is to prove the unconstitutionality of SB 8, in order to get what you want. Whereas if you lose here, you get what you want without having to prove another step,” Boyd said.
Hearron explained that the plaintiffs could possibly mount a real constitutional challenge against SB 8 if SCOTX were to rule that the agencies do have some enforcement power. However, the state claims it cannot enforce the law, and the plaintiffs themselves would seek an injunction against the state if SCOTX rules that it does have that power.
Previous Proceedings at the U.S. Supreme Court
Although the abortion providers and supporters began their challenge as a federal lawsuit aiming to stop SB 8 wholesale, it wound up in Texas’ highest civil court after the U.S. Supreme Court hamstrung their case by dismissing key defendants.
Initially, the plaintiffs sued a state judge and clerk, Texas Attorney General Ken Paxton, and a lone pro-life activist alongside a slew of state agencies that regulate abortion: the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the Texas Health and Human Services Commission. Because SB 8 is enforced through civil lawsuits, the plaintiffs sought a sweeping injunction against the entire Texas court system that would have prevented judges and clerks from hearing or even filing the enforcement lawsuits that SB 8 authorizes.
After going through district court and then the Fifth Circuit Court of Appeals, the case went before the U.S. Supreme Court, which had previously refused to take it up.
In December, the Supreme Court dismissed the judge and clerk, the attorney general, and the activist, all of whom were necessary for the plaintiffs to challenge the law’s unique enforcement method. The Supreme Court allowed the lawsuit to limp onward against the state agencies, but as Stone told Justice Jimmy Blacklock yesterday, no court action against the agencies can stop the central mechanism of the law.
“An injunction against several state defendants couldn’t possibly prevent private individuals from attempting to enforce SB 8… through the civil mechanisms,” Stone said.
According to state data, the number of abortions performed in Texas dropped sharply after SB 8 took effect.
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