Court Battles

Texas Supreme Court rebuffs abortion providers’ challenge to 6-week ban

The Texas Supreme Court on Friday ruled that state licensing officials lack authority to enforce the state’s six-week abortion ban, handing a major defeat to abortion providers in their legal challenge to the restrictive law.

The unanimous 23-page ruling eliminated the final legal avenue providers had pursued in their bid to obtain a federal court order blocking state officials from enforcing Texas’s S.B. 8, the nation’s strictest abortion measure. 

The ruling effectively determined that the last remaining group of state officials who were named as defendants are beyond the reach of federal courts in the case.

“With this ruling, the sliver of this case that we were left with is gone,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, one of the challengers in the case. “An unconstitutional ban on abortion after six weeks continues unchecked in the state of Texas. The courts have allowed Texas to nullify a constitutional right.”

At issue was a procedural fight that arose after a sharply divided U.S. Supreme Court ruled in December that abortion providers could contest the ban in federal court and list Texas state licensing officials as defendants. 

Abortion providers had asked the Supreme Court to send the case back to a federal district court, where the judge presiding over their challenge had previously blocked the Texas law. But the justices instead returned the case to the conservative U.S. Court of Appeals for the 5th Circuit, which has allowed the ban to remain while the case proceeds. 

The 5th Circuit, in turn, asked the top Texas state court to interpret the law, S.B. 8, and determine whether state licensing officials are appropriate defendants in the federal suit, under a legal mechanism known as state certification.

The Texas Supreme Court’s ruling on Friday provided the answer: Based on its reading of S.B. 8, the court wrote, “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.”

S.B. 8 authorizes citizens to file private lawsuits against those who perform, aid or abet an abortion after fetal cardiac activity is detected, typically around six weeks of pregnancy, before most women know they are pregnant. Successful suits under S.B. 8, which contains no exceptions for rape or incest, fetch at least $10,000.

The Friday ruling does not affect separate cases in Texas state court or pending federal litigation that aims to block individual defendants from enforcing the ban.

But it leaves intact Texas’s six-week ban, despite directly conflicting with Roe v. Wade’s core recognition of a constitutional right to abortion before a fetus is viable, typically around 24 weeks of pregnancy.

S.B. 8 has drastically reduced abortion access in Texas since the law took effect more than six months ago. The impact has fallen hardest on poor people, as well as Black and  Hispanic communities, and neighboring states have reported an influx of Texas residents seeking abortion, according to abortion rights advocates. 

In December, the Supreme Court in a 5-4 decision carved a narrow path for a federal court challenge to proceed against S.B. 8, ruling that abortion providers could sue only one group of state defendants in federal court: Texas licensing officials. 

But if the justices’ December ruling left the doors to the federal courthouse cracked open, the Friday ruling by the Texas Supreme Court slammed them shut.

“It ends the abortion providers lawsuit against S.B. 8 and underscores that the Supreme Court allowed states to write and enforce laws that nullify constitutional rights — without having to defend those laws in court,” said Leah Litman, a law professor at the University of Michigan.

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