Texas Supreme Court hears abortion ban challenge

Case involves Texas law that blocks nearly all abortions after six weeks of pregnancy

An attorney for Texas told the state’s highest court it could decide the U.S. Supreme Court was wrong when it gave abortion providers a narrow legal pathway to challenge a Texas abortion law. Above, the U.S. Supreme Court. (Bill Clark/CQ Roll Call file photo)
An attorney for Texas told the state’s highest court it could decide the U.S. Supreme Court was wrong when it gave abortion providers a narrow legal pathway to challenge a Texas abortion law. Above, the U.S. Supreme Court. (Bill Clark/CQ Roll Call file photo)
Posted February 24, 2022 at 2:04pm

The Texas Supreme Court heard arguments Thursday on a state abortion law that has blocked almost all abortions since September, and most justices refrained from comments criticizing the restrictions.

All nine of the justices are Republicans, making it likely they will rule in favor of the state law.

The arguments came days before the Senate intends to hold a cloture vote on a broad abortion rights bill that Democrats say is necessary to provide federal abortion protections due to laws like the Texas ban.

The Texas law, known as SB 8, blocks nearly all abortions after six weeks of pregnancy using a legal maneuver that empowers citizens to enforce the ban. Any person can challenge someone suspected of aiding in an abortion. The plaintiff would receive a minimum $10,000 “bounty” if the defendant is found guilty.

The unusual legal mechanism has allowed the broad abortion restriction to be in effect since September 2021 as the case moves through the legal process.

In a separate case, the U.S. Court of Appeals for the 4th Circuit on Tuesday upheld a lower court decision temporarily blocking a South Carolina law with a six-week abortion ban. It has been facing litigation since it was signed into law in February 2021 and does not use the same legal maneuver as the Texas ban.

The Texas law has also faced multiple legal challenges from abortion rights advocates, and it has led to a tangle of procedural questions that are still being unraveled.

An attorney for Texas told the state’s highest court Thursday that it could decide the U.S. Supreme Court was wrong in December when it gave abortion providers a narrow legal pathway to challenge a Texas law that effectively bars procedures after about six weeks of pregnancy.

Judd Stone of the Texas Solicitor General’s Office told the Texas Supreme Court that the state law was written in a way that meant there could be no lawsuits against state officials who tried to stop the law before it took effect.

The problem with that argument, as one member of the Texas Supreme Court pointed out right after Stone made that point, is that “eight justices on the Supreme Court didn’t think that.”

The U.S. Supreme Court ruled 8-1 in December that challenges could move forward against some state licensing officials, although it also ruled 5-4 that the challenges could not move forward against state judges and clerks.

Abortion providers' lawsuits are against state officials who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas’ Health and Safety Code, including the abortion law.

When the Supreme Court sent the case back to the U.S. Court of Appeals for the 5th Circuit, that court decided to send the case to the Texas Supreme Court for more clarity on what the state law means.

Stone told the Texas Supreme Court on Thursday that five members of the U.S. Supreme Court basically said Texas courts are free to agree or disagree on their interpretation.

Texas Supreme Court Justice Debra Lehrmann told Stone that the Supreme Court ruling is “certainly not something we’re going to thumb our nose at.”

Stone then said the Texas high court has made stronger commitments to interpret statutes using the text of the law, known as textualism, than the U.S. Supreme Court has. And upon further review, the Texas court could decide the highest court in the land “simply was incorrect.”

“There are several members of the United States Supreme Court who are not so committed, and that court is sometimes fairly described as the fair-weather textualist bench,” Stone said. “This one is not. So that's a meaningful difference.”

One Texas justice asked a follow-up about Justice Neil M. Gorsuch, who wrote the Supreme Court’s opinion in December and considers himself a textualist.

“Justice Gorsuch is a fair-weather textualist?” Texas Supreme Court Justice Evan A. Young asked, eliciting laughter from the bench from at least one other justice.

Stone replied: “I was speaking of the body.”

“I don't think that Justice Gorsuch is a fair-weather textualist," Stone continued. "I think he's merely wrong.”

Lehrmann then corrected him, referring to the 8-1 decision: “Eight of them.”

Abortion pill uptake

Meanwhile, new data released by the Guttmacher Institute on Thursday showed that a majority of all abortions are medication abortions, a nonsurgical procedure that induces an abortion through a two-pill cocktail: mifepristone and misoprostol.

The data showed that 54 percent of abortions in 2020 were medication abortions, up from 39 percent in 2017.

The information indicates 2020 was the first year the majority of abortions were medication abortions, and the institute said this percentage has been increasing since the Food and Drug Administration approved mifepristone in 2000.

That number is likely to rise after FDA announced in December that it would change two requirements related to how medication abortions can be administered nationwide. The announcement allows mifepristone to be dispensed outside of a clinic and to be stocked in a certified pharmacy.

Last year, Texas implemented a second law that reduced the window for providing a medication abortion from 70 days to 49 days — less than what FDA recommends.