In its anticipated ruling on Texas’ controversial abortion ban last week, the U.S. Supreme Court expressed significant concerns with the law’s unique enforcement mechanism, which empowers anyone to sue those who violate the statute. But ultimately the majority refused to block its implementation and instead limited how the legal challenge can proceed.
The court’s splintered opinion will define the next chapter in the legal saga, but after the smoke cleared Friday, one thing became increasingly clear: For the abortion providers fighting the restrictions, there might not be a lot left to win.
“The Supreme Court has ruled out the most promising claims that would have stopped the vigilante lawsuits in their tracks,” said Julie Murray, one of the lead attorneys for abortion providers in the case. “A significant portion of the lawsuit was foreclosed by the Supreme Court decision and that’s going to have a really substantial negative impact on access going forward and on Texans.”
The Supreme Court ruled that the providers could continue challenging Texas’ law but weakened their legal strategy by removing nearly all of the defendants in the case, leaving abortion supporters with few options for a viable lawsuit. And legal experts say the state might be able to easily counter what’s left of the suit by amending the law.
Now there are no clear avenues for a major victory on behalf of abortion rights advocates, and the ones that remain will likely be hard fought and wind slowly through the court system by way of appeals.
“Appeals can take many months, if not years. And so the the real impact of the Supreme Court’s decision last week was to essentially disregard the ongoing impact on the ground for Texans in need of abortion,” Murray said. “[It is] ultimately going to harm patients and their families — potentially for many years.”
Abortion providers have fallen in line with the law out of fear of financial ruin, making the ban one of the greatest wins for anti-abortion advocates in recent history. In September, the first month the law went into effect, the number of procedures plummeted by half compared to the same month last year, according to a study from the University of Texas at Austin.
Amy Hagstrom Miller, president of Whole Woman’s Health, which operates four clinics in Texas and is the lead plaintiff in the providers’ lawsuit, warned last week that the current volume of services is not enough to keep clinics open in the long term.
“Staying open is not sustainable if this ban stays in effect much longer,” Hagstrom Miller said. “We are grateful for the donors and foundations and folks who have been supporting us in the interim … but the future looks bleak if we can’t get some justice here.”
Who can opponents of the law sue?
The law, commonly referred to as Senate Bill 8, allows private citizens to sue those who help others get an abortion after around six weeks of pregnancy, and if the lawsuit is successful, plaintiffs get at least $10,000 in damages. It also bars Texas officials and law enforcement from enforcing the statute.
This novel combination has made the law notoriously difficult to topple in court. Legal challenges to a law usually involve suing government officials and a request to stop them from enforcing it. But by offloading enforcement to private citizens and limiting who can enforce the restriction, legal opponents have struggled to name defendants that could be sued to stop the law. The Supreme Court’s decision Friday made the number of possible defendants even smaller.
In its ruling, the court cited sovereign immunity — which protects government entities from some civil lawsuits — to rule that the providers cannot sue local government officials, including court clerks.
Targeting court clerks was a key legal strategy in the providers’ challenge. The goal was to stop clerks from receiving and processing suits filed under the abortion law. The tactic was previously used when the Biden administration asked a federal district judge to temporarily order courts to not accept any lawsuits related to the abortion law. That order lasted for only two days before Texas successfully appealed. The Supreme Court ended the Biden administration’s lawsuit on Friday, saying the U.S. lacked the legal standing to intervene.
Now that the strategy is off the table, legal experts agree that it looks more unlikely than ever that abortion providers can prevent lawsuits from being filed in the first place.
The Supreme Court did allow abortion providers to name state licensing officials as defendants, who could potentially threaten to revoke the licenses of medical professionals who violate the abortion law. But Erik S. Jaffe, a Washington, D.C.-based lawyer who represents a gun rights group that opposes the law, said Texas could just amend the law to explicitly prohibit the licensing officials from enforcing it — therefore making them unsuitable defendants as well.
U.S. District Judge Robert Pitman, who is overseeing the case, hasn’t tilted his hand on how he will handle the case going forward. Although he temporarily stopped enforcement of the law before, it’s unclear how he would rule now that court clerks can’t be ordered to stop accepting suits under the abortion law.
But before Pitman can act on the case, he has to get the green light from the Supreme Court. It typically takes 25 days after justices render an opinion and order a case to return to a lower court for that to happen.
Attorneys for the abortion providers have asked the Supreme Court to expedite that process to allow Pitman to get started sooner, but that hasn’t happened yet.
The road ahead
Pitman could still rule that Texas’ abortion law is unconstitutional, which at the very least would serve as a court precedent — a tool that could be used by those being sued to try and get individual lawsuits thrown out.
“A declaration of unconstitutionality certainly is valuable,” Murray said. “I mean, I think anybody who’s thinking about bringing a lawsuit if they know that a court has already declared that law unconstitutional would certainly think twice before doing it.”
But even if Pitman declares the law unconstitutional, it wouldn’t have a binding effect on future individual cases, said Josh Blackman, a law professor at South Texas College of Law Houston. Although a court could use that order as a precedent to throw out a case, there would be nothing to stop individual lawsuits from being filed — or a guarantee that the suits would be thrown out.
Murray said now only the state’s and nation’s highest courts realistically have the power to end the enforcement of the law.
“What we need for full, robust relief is either a decision from the Texas Supreme Court or the U.S. Supreme Court saying that SB 8 is unconstitutional,” she said.
But the path to either court could take months or even years. And Texas has a lot of control over which cases are escalated to one of the high courts.
To keep the law in place, attorneys for the state could simply not appeal lost cases or abandon them if it looks like they might go to the Supreme Court, Jaffe said.
“Nobody on the Texas side of things would be stupid enough, I wouldn’t think, to let [a suit under the law] go all the way up to the U.S. Supreme Court, much less [to] the Texas Supreme Court, unless they were darn confident of the answer,” Jaffe said.
The abortion providers’ challenge, he added, “is doomed.”
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