DALLAS — On Friday, the Texas Supreme Court handed down a ruling that essentially removes any grounds for abortion providers in the state to continue their challenge to Senate Bill 8 in federal court.
Last December, the U.S. Supreme Court ruled that the federal lawsuit claiming the anti-abortion legislation is unconstitutional could continue.
However, the high court ruled that the law would remain in place during that challenge and that the lawsuit could not target the state of Texas or elected officials like Texas Attorney General Ken Paxton. It only allowed for providers to target officials in charge of state medical licensing in their lawsuit, on the grounds that those individuals may have the ability to enforce Senate Bill 8 by taking action against clinics that are in violation of the law.
On Friday, the Texas Supreme Court ruled that those licensing officials do not have the authority to enforce Senate Bill 8, based on the way the law is written.
The legislation, which went into effect on Sept 1, 2021, makes abortions illegal after a fetal heartbeat is detected, which is typically around six weeks. There are no exceptions for rape or incest.
The law's enforcement method is unique in that it allows private citizens to file civil lawsuits against any party they believe to be helping someone get an illegal abortion and be awarded up to $10,000.
The enforcement part of the law makes it different than anti-abortion bills passed in other states, most of which have been blocked, and it's been a key factor in protecting it from legal challenges.
"We looked at other states that were passing heartbeat policies, and we knew that the abortion industry’s typical playbook is to sue the government, which is going to be the actor enforcing a typical law," Texas Right to Life communications director Kimberlyn Schwartz said. "That ties up a policy in court for years and years and years. For states, even if they passed their heartbeat policies before us, they still haven’t been in effect."
Friday's decision means that the federal challenge to Senate Bill 8 will likely be dismissed. It's also an additional greenlight for conservative-leaning states to pass similar legislation.
"We’ve already been working with about a dozen other states to try to pass this law elsewhere because we know Texas is responsible for leading the way to protect life," Schwartz said.
This week, Oklahoma's senate passed an anti-abortion bill that mirrors Senate Bill 8 and utilizes the same private citizen method of enforcement.
“Already, the system is very strained because we do not have enough abortion providers in our part of the country," Emily Wales, interim president and CEO of Planned Parenthood Great Plains said. "Patients are already being delayed three to four weeks. With the loss of Oklahoma very likely, after six weeks, patients will have to go to Kansas, Colorado or New Mexico. They will have to, if they have resources.”
Planned Parenthood Great Plains is made up of clinics in Oklahoma, Kansas, Arkansas and Western Missouri. Wales said more than 1,000 Texans have come to get abortions at their clinics in the region in the six months since SB 8 went into effect. She said most of them have gone to Oklahoma City and Tulsa.
"Many of those patients have been scrambling for care," Wales said. "They've been coming with their kids in the car or with their kids in childcare, and they're very hopeful that they can get care quickly and get back home to their lives and to their families."
Wales said providers, depending on the specific laws in their states, are having to turn patients away more frequently as restrictions grow. She said, as access continues to dwindle, the care itself will come down to who can afford to get it.
"What we know is that many patients don't have the resources, and they will be unable to get care" Wales said. "In those cases, they may seek to terminate a pregnancy without any medical support, which should never have to happen. or they may be forced to carry a pregnancy against their will."
The U.S. Supreme Court is expected to rule on a case involving Mississippi's abortion law this summer. If the court decides to uphold it, the decision could reverse the precedent set by Roe v. Wade.
