Texas Abortion Act: What You Need to Know About Fighting Developing State Courts

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But the effort has a bigger final game: getting a Texas Supreme Court ruling overturning the law.

The same procedural issues that are undermining the federal legal struggle could throw nails at the gambit of state courts. But a Texas Supreme Court ruling against the law would nonetheless send a valuable signal that could limit its scope.

Texas law, SB8, replaces any private citizen in the country with the power to file civil lawsuits in Texas state courts against abortion providers accused of violating the ban. It opens clinics – and anyone else accused of helping and inciting women to have abortions after about six weeks – in the face of the threat of endless litigation that could drive them out of business. Thus, clinics and groups that facilitate access to abortion are presented in a counteroffensive by state courts, rather than waiting for their federal challenges to the law to be met.

In the short term, abortion providers hope to protect their workers from individual abortion activists who would try to impose a six-week ban on them. Its success so far has been sparse. Obtaining a temporary order that generally blocks the enforcement of the ban is procedurally difficult, if not impossible. So far, abortion rights advocates have relied on an individual strategy to seek court orders against the Texas Right to Life group and select activists who have been more vocal in law enforcement.

Such cases, however, could provide a vehicle for a broader Texas Supreme Court ruling overturning major parts of the law. This result may not be enough to fully protect abortion providers from the impacts of the ban, but it could check for some relief as long as the federal lawsuit challenging the law has been allowed (by the U.S. Supreme Court and a federal court of appeals).

“Even if these lawsuits can’t get to the end to block this at the state level, there’s still value,” said Stephen Vladeck, a CNN Supreme Court analyst and professor at the University of Law School. Texas-Austin. “Even if (abortion providers) can’t get all the relief they need, there’s value in getting more relief than none.”

What can state courts do right away?

Texas law, which prohibits abortions after detecting fetal cardiac activity, appears to be directly at odds with the 1973 U.S. Supreme Court ruling. Judgment Roe v. Wade and later cases asserting this decision. These federal cases enshrined constitutional protection for abortion before viability, which is approximately 23 weeks pregnant.

Still, the challenges of federal courts citing these precedents have yet to block Texas law, which went into effect last week, because of its clever design. Federal courts have been quick to block strict abortion laws that impose criminal or regulatory punishments, because they can direct these orders to specific government officials in charge of enforcing the punishments. But the Texas Prohibition Enforcement Mechanism – which grants any private citizen with the ability to sue clinics and others – has mixed this typical way of fighting the law, and the judiciary is still pondering this procedural issue. .

Meanwhile, clinics and other abortion rights advocates have already secured temporary state court orders to prevent preventive specific abortion activists from carrying out SB8 civil enforcement actions against them.

The first round of temporary restraining orders was reached early last week, just before the law came into force. These orders prevented Texas Right to Life from enforcing the law against the Bridge Collective, a group that facilitates transportation to clinics, as well as two individual attorneys who help women gain access to the procedure.

“It was very important to protect our volunteers and we felt that the best way to do that was to proactively attack this bill, both with the piece (temporary restraining order) and with the lawsuit,” said Kristina Arike, the Bridge Collective treasurer, she told CNN last week.

Texas Right to Life has mocked the effort, which also included a temporary restraining order guaranteed by Planned Parenthood clinics against the group. Its court records have noted that as long as clinics appear to comply with the six-week ban (and so far no clinic has attempted to violate it publicly), its activists do not intend to file a lawsuit against the ban. they.

Jonathan Mitchell, the group’s attorney in the case, declined to comment on the record of this story. America First Legal Foundation, a legal advocacy group led by former Trump White House aide Stephen Miller, also advocates for abortion activists.

In a statement last week, Texas Right to Life warned that “Planned Parenthood can sue us, but they can’t sue all Texans.”

“Whenever they commit abortions, they are responsible for the Texas Heartbeat Act that saves lives,” the statement says.

An abortion fund lawyer, Elizabeth Myers, told a Travis County district judge last week that an order against Texas’ right to life would send a signal that would discourage other people from considering suing. its customers according to SB8. Myers told the judge that the funds for the abortion would also seek restraining orders against these people if they filed a lawsuit against the execution.

Where will the state court cases go?

Next Monday, there will be court hearings in cases filed by Planned Parenthood and abortion access groups to examine whether the time-restriction orders against Texas ’right to life (which expire after 14 days) s ‘must become orders that would last as long as the cases are litigated.

After deciding this issue, the cases will go to the bottom of what clinics and abortion funds argue: that SB8 violates the Texas Constitution. This issue will finally be resolved by the Texas Supreme Court. The process of appealing to this court will take at least weeks, if not months, although abortion rights advocates expect the proceedings to be expedited to prevent it from taking years.

The lawsuits filed by the abortion funds are aimed at the mechanism of enforcement of the ban, alleging that it violates various protections due to the Texas Constitution, as well as its protections for freedom of expression. Some of the organizations for access to abortion, particularly those not involved in the main federal lawsuit, also file claims for freedom of expression and equal protection under the U.S. Constitution in their lawsuits.

“The ultimate goal is a declaratory judgment that the Texas Supreme Court would rule that the law, SB8, is unconstitutional,” Jennifer Ecklund, another abortion fund lawyer, told CNN.

This Texas Supreme Court ruling, Ecklund said, would then force any lower court to dismiss a private enforcement action that anti-abortion activists filed against clinics or their allies according to SB8.

The Planned Parenthood lawsuit makes similar arguments while launching a frontal attack on the abortion ban. His court records argue that the six-week ban violates the provisions of the Texas Constitution that protect “personal privacy from unwarranted interference and unwarranted interference with personal autonomy.”

“Ultimately, we are seeking a final court decision declaring SB 8 unconstitutional statewide in order to restore access to abortion to the millions of Texans who need it,” Julie Murray, a lawyer for the United States, told CNN. staff of the American Federation of Parental Planning. a statement.

Will a Texas Supreme Court ruling end the legal fight?

It is still unclear whether this decision would be enough to deter any private citizen from taking action to enforce the SB8 against clinics. The ban is structured in a way that encourages even the most frivolous law enforcement actions. Abortion clinics are prohibited from reimbursing attorneys’ fees even if they win SB8 application cases, so those who bring the lawsuits will not suffer any consequences from cases that will be automatically ruled out.

“And here lies the friction: how can a provider avoid an endless system of such lawsuits, even after the Texas Supreme Court has ruled that SB8 is unconstitutional?” Vladeck asked.

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