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Texas’ restrictive new abortion law returns to a federal appeals court on Friday, where judges will consider a very narrow legal question: whether state medical licensing officials can discipline doctors and nurses for practicing of abortions in Texas after about six weeks of pregnancy.
This slim challenge is the only one left for abortion providers since the Supreme Court’s 8-1 decision in December, which kept the uniquely designed law largely intact. At Friday’s hearing, the New Orleans-based 5th U.S. Court of Appeals will decide whether this remaining challenge should go to the Texas Supreme Court or go to federal court.
Lawyers for Texas abortion providers have asked the United States Supreme Court to step in and force the 5th Circuit to send the case to federal district court. The Supreme Court has yet to respond to that request and unless it does before Friday, the appeal hearing will proceed as scheduled.
Friday’s hearing is unlikely to change much about access to abortion in Texas, where abortions after about six weeks of pregnancy have effectively been banned for more than four months.
“The best thing would have been for the Supreme Court to block this unconstitutional law, but we didn’t get it,” said Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, which operates four abortion clinics in Texas. “We must therefore continue to try to obtain relief from this law.”
But this last remaining challenge of the Supreme Court case will not substantially change the gist of the law, which allows private citizens to sue anyone who, as the law says, “assists or encourages” an abortion after about six weeks. of pregnancy.
“I’m not sure people fully appreciate the impact of this Supreme Court ruling,” said Marc Hearron, senior lawyer for the Center for Reproductive Rights, which represents abortion providers. “The Supreme Court… gave the green light to these bounty hunting programs. “
Avoid judicial review
Texas law, originally enacted as Senate Bill 8, makes it illegal to help a pregnant patient to have an abortion after detection of fetal heart activity, which is usually around six weeks pregnant.
The Supreme Court ruled in Roe v. Wade in 1973 that states cannot ban abortion until the point at which a fetus could likely survive outside the womb, usually around 24 weeks. For decades, courts have prevented states, including Texas, from passing pre-viability bans.
But SB 8 was specifically designed to withstand legal challenge by empowering private citizens – not state officials – to prosecute anyone who “aids or encourages” a prohibited abortion for at least $ 10,000 per abortion.
By design, government officials are prevented from enforcing the law, leaving abortion providers without a government entity to challenge in court.
Fearing financial ruin, abortion providers in Texas stopped the procedure altogether after detecting fetal heart activity, which is often before a patient even knew she was pregnant.
Whole Woman’s Health, which operates four abortion clinics in Texas, is the main plaintiff in this case. Hagstrom Miller said clinics have served less than 30% of their usual patient load since the law came into effect in September.
“Some people go straight to Louisiana or some other state where it’s more accessible,” she said. “But a lot of people just disappear. They know their options are gone, they know they are over the edge and these are the people that you are going to see in the next generation being affected in the very long term.
In November, lawyers for abortion providers argued in the Supreme Court that the law is unconstitutional and could be blocked by preventing the court system from taking such cases.
But the High Court strongly disagreed with the challenges posed by lawyers for abortion providers. It allowed for a challenge against state officials who would be responsible for revoking the medical licenses of anyone prosecuted under the law.
“Doctors, nurses and pharmacists risk losing their medical licenses if they violate this law,” Hearron said.
But even if the court barred those license officials from taking action, the law’s main threat remains. Abortion providers could still face countless civil lawsuits, each for at least $ 10,000, for every abortion they perform.
Hagstrom Miller said his organization is committed to meeting this challenge to the end, no matter how small.
“I hope we will have some relief,” she said. “It’s just hard to predict how much relief we’ll need to get people back to health.”
Where does the business go from here
The 5th Circuit said it would consider whether the case should now go to the Texas Supreme Court to determine whether the challenge by medical clearance officials can be continued.
The Texas attorney general’s office did not respond to a request for comment. But in a court file, state attorneys argued that sending the case back to the Texas Supreme Court was the right decision.
“The Supreme Court made it clear that it was only offering a provisional interpretation of Texas law,” the record reads. “The court reaffirmed that federal courts must follow interpretations of state law by the state judiciary. “
Lawyers for the abortion providers argued in a petition filed with the Supreme Court that the 5th Circuit should instead have immediately referred the case to the district court. 5th Circuit Judge Stephen A. Higginson agreed, writing in dissent that there was nothing more for the court to consider.
“The defendants have already lost this point in the Supreme Court,” he wrote. “They shouldn’t have a second bite.”
The involvement of the state Supreme Court could add months, if not more, to the resolution of this case. The United States Supreme Court did not block the law during the litigation, and the 5th United States Court of Appeals is unlikely to either.
The only real way to block the law is through the district court, Hearron said. U.S. District Judge Robert Pitman briefly blocked the law in October, and a summary judgment motion is pending before him.
“The plan at the moment is to keep trying to come back to the district court for declaratory relief,” Hearron said. “Other than that, suppliers are going to have to carefully consider what they will be able to do. “
One option is for providers to intentionally break the law and then challenge the resulting lawsuit in court on constitutional grounds. In October, Dr Alan Braid, an abortionist in San Antonio, said he performed a banned abortion. He has been sued three times and asked a federal judge to dismiss the charges on the grounds that the law is unconstitutional.
This case is ongoing.
Hagstrom Miller said she “fantasizes” that all abortion providers statewide are banding together to break the law. But that would require trusting a legal system that has proved increasingly hostile to access to abortion in recent years.
“What is this news [Supreme] The Court only did it this year, it has been night and day for even six years, ”she said, referring to her victory in 2016 at the Supreme Court which abolished a series of restrictions to abortion. “I just don’t think that in this country in general we can look to the justice system for the relief we have had in the past.”