Texas Gov. Greg Abbott speaks during a briefing on July 10, 2021, in Austin.
A coalition of abortion providers, health care advocates and civil libertarians filed an emergency petition with the U.S. Supreme Court on Monday asking it to block Texas’s ban on abortions after six weeks.
Lone Star State legislators recently passed S.B. 8, on an all-but party line vote with only one Democratic Party defection in favor of the bill. The restrictive measure is scheduled to take effect Sept. 1 after the Fifth Circuit Court of Appeals denied a request to enjoin the law on Sunday.
The Texas Heartbeat Act forces medical providers to look for the heartbeat of a fetus before performing an abortion and provides, specifically, that “a physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat.”
Additionally, the law allows any member of the public to file a lawsuit against a woman’s physician or anyone else who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise.”
“S.B. 8 bans abortion after six weeks into a pregnancy – before most people even know they’re pregnant – and creates a bounty hunting scheme that encourages the general public to bring costly and harassing lawsuits against anyone who they believe has violated the ban,” the American Civil Liberties Union said in a press release announcing the high court petition. “Anyone who successfully sues a health center worker, an abortion provider, or any person who helps someone access an abortion after six weeks will be rewarded with at least $10,000, to be paid by the person sued. Lawsuits may be filed against a broad range of people, including: a person who drives their friend to obtain an abortion; abortion funds providing financial assistance to patients; health center staff; and even a member of the clergy who assists an abortion patient.”
According to the ACLU, the law will affect some 85 to 90 percent of the people who obtain abortions in Texas.
In their Monday emergency request, the plaintiffs argue that an injunction is necessary to maintain current clearly established legal norms as they relate both to abortion law and civil litigation.
“In an attempt to insulate this patently unconstitutional law from federal judicial review prior to enforcement, the Texas Legislature barred government officials—such as local prosecutors and the health department—from directly enforcing S.B. 8’s terms. Instead, the Act deputizes private citizens to enforce the law, allowing “[a]ny person” who is not a government official to bring a civil lawsuit against anyone who provides an abortion in violation of the Act,” the filing says. “At every turn, S.B. 8 attempts to replace normal civil-litigation rules and clearly established federal constitutional rules with distorted versions designed to maximize the abusive and harassing nature of the lawsuits and to make them impossible to fairly defend against.”
The plaintiffs filed their emergency petition in the wake of a Fifth Circuit ruling that tersely paused all proceedings at the district court level and which also declined to issue an injunction of their own. That procedural state of play, the plaintiffs contend, means that irreversible harm is all-but guaranteed absent the high court’s intervention. And that, the plaintiffs say, is encroaching on an already extant case before the nine justices.
“Despite this Court’s precedent, and the clear harm that will occur in less than two days, the U.S. Court of Appeals for the Fifth Circuit entered an indefinite administrative stay of all district-court proceedings in Applicants’ challenge to S.B. 8; vacated the preliminary-injunction hearing that had been scheduled for August 30; denied Applicants’ motion to expedite Respondents’ interlocutory appeal; and denied an injunction pending appeal,” the filing notes. “Absent relief from this Court, the court of appeals’ orders will prevent the district court from ruling on Applicants’ request for emergency injunctive relief in a meaningful time frame, allowing Texas to ban abortion beginning at six weeks of pregnancy before this Court considers the question presented in Jackson Women’s Health Organization.”
The filing goes on to argue that the case is fundamentally a question about whether Texas’s efforts to enforce the fetal heartbeat prohibition through the use of private litigants, rather than through explicit state actors, is enough to allow an otherwise “unconstitutional prohibition” to stand.
“The answer to that question must be no,” the plaintiffs say in their petition. “This Court should grant relief to block Texas’s flagrant defiance of this Court’s clearly established constitutional precedent. In so doing, it should make clear that the Fifth Circuit’s extraordinary decision to administratively stay all proceedings in the district court just days before that court was set to rule on Applicants’ fully briefed preliminary injunction motion was an abuse of discretion, as was its decision to deny an injunction pending appeal and Applicants’ request to expedite that appeal.”
Twelve additional states have passed laws similar to the one Gov. Greg Abbott (R) signed into late in late May. Courts across the country have invalidated those laws for various reasons. Texas is the only such law that relies on public enforcement via lawsuits instead of law enforcement. Critics say the novel use of a right-of-action is a way to try and insulate the law from federal review.
“Texans, like everyone else in this country, should be able to count on safe abortion care in their own state,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, the lead plaintiffs in the lawsuit, said in a press release. “No one should be forced to drive hundreds of miles or be made to continue a pregnancy against their will, yet that’s what will happen unless the Supreme Court steps in. Whole Woman’s Health clinics will be open to provide abortion care up until the minute this law takes effect and we urge the Supreme Court to protect patients’ health and allow us to continue providing the essential healthcare Texans deserve.”
(image via Tamir Kalifa/Getty Images)