Four days after the Supreme Court left abortion clinics and doctors in Texas with only a narrow way to challenge that state’s restrictive abortion ban in the federal courts, four state officials have made plans to try to block that path.
In a filing made public Tuesday by the Supreme Court, the officials whose duties include licensing of medical services said they will attempt to have the clinics’ ongoing challenge moved from federal court to the Texas Supreme Court, with the specific aim there of shutting the case down.
That plan could seriously complicate the process of getting some court, somewhere, to finally decide if the Texas ban (so-called “SB8”) is invalid, either under the U.S. Constitution and laws or under Texas’ state constitution and laws. The many complications in this controversy have already raised the prospect that it could take months for the courts to finish.
An abiding question, to which no court has yet given a final answer, is whether the Texas ban will be allowed to remain in effect while that process goes on. In effect now for a total of 105 days, the ban has had the effect of preventing all but a very few abortions in the state.
SB8 is the strictest abortion ban in the nation, seeking to forbid all abortions after six weeks of pregnancy and assigning enforcement of the ban to private individuals seeking to win at least $10,000 against anyone who helps a woman obtain an abortion that would violate the ban. In general, SB8 is being challenged both as to the ban itself and also as to the unprecedented private enforcement scheme.
The Supreme Court’s splintered decision last Friday dealt only with the enforcement mechanism, and did so only to allow the clinics and doctors to return to lower courts to make their challenge by suing four state officials in charge of medical licensing, and no one else in state government.
But whether those officials technically do have the power to enforce any part of SB8 is, ultimately, a question of state law – that is, what the state legislature meant in writing the text of SB8 on that point. The Supreme Courts’ interpretation of that law could be overridden by a state court – the state Supreme Court, perhaps – because state tribunals have the last word on what their laws mean.
The next step in the controversy was to be the simple act of the Supreme Court sending the clinics/doctors’ case back to a lower court to follow up on Friday’s ruling. But the controversy is growing more complex because a new disagreement has broken out on which lower court should be assigned the task of going forward with that case – a federal appeals court or a federal trial court in Austin.
There actually are three significant court proceedings involving SB8: (1) the clinics/doctors case in federal court that the Supreme Court acted on last Friday will now be focused on the medical licensing officials; (2) a separate federal court case by the Biden Administration against all parts of the state law in a challenge to the state itself and its officers; and (3) a series of 14 cases combined in one state court, filed by clinics, doctors and abortion rights advocates.
The Supreme Court on Friday, aside from clearing a narrow path for the first of those cases to go ahead in lower federal court, found no reason to rule at this point on the second case in federal courts – by the Biden Administration. The consolidated cases at issue in state court are moving ahead on a separate track confined, so far, to the state courts.
It is the first of these that the licensing officials now say they will seek to have transferred to the state’s highest court to get what they hope would be a decision saying that they have no power to enforce SB8, thus eliminating the legal interpretation which the Supreme Court said gave them the right to sue.
Technically, they can’t make that move yet because the Supreme Court has not yet returned that case to lower courts. And they can’t try that maneuver as a technical matter unless the case goes back to the appeals court, rather than to the trial judge in Austin. (Such a transfer can only be made by a federal appeals court.)
Yesterday, the clinics and doctors initiated the new flurry of activity by asking the Justices to take a short cut from normal procedures, and send their case, immediately, back to the judge in Austin so their challenge can resume.
The state licensing officials promptly answered, arguing against the request and claiming that they need time to prepare to get that case shifted to Texas’s highest court – a highly conservative tribunal that might well be willing to end the challenge altogether.
If the Texas Supreme Court went along with the maneuver, that might mean the end of the clinics/doctors case against the enforcement mechanism, but they may be able to keep alive in some form – but maybe only as a long shot procedurally — their separate argument that the ban itself is invalid under the U.S. Constitution.
Meanwhile, the Biden Administration case and the combined group of 14 cases going through the state courts appear likely to move ahead, at least for the time being.
Administration lawyers have been arguing that the federal government is not limited in who among state officials it can sue to stop them from interfering with constitutional rights, such as the right to abortion, and from interfering with federal courts’ power to rule on SB8’s constitutionality.
It now seems certain that there will be new developments, occurring frequently and moving in different directions, as the controversy runs on.