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Texas Supreme Court rules against abortion providers

Legal fights will continue in other states looking to implement their own restrictions

Protesters gather outside the Supreme Court on Nov. 1, 2021 as arguments begin about the Texas abortion law by the court.
Protesters gather outside the Supreme Court on Nov. 1, 2021 as arguments begin about the Texas abortion law by the court. (Jabin Botsford/The Washington Post via Getty Images)

A Texas Supreme Court ruling Friday further closed the door on a major challenge to the state’s abortion law that, since September, has banned nearly all abortions after about six weeks of pregnancy.

The state high court ruled that some state officials who bring disciplinary actions against providers aren’t enforcing the state law, known as SB 8. That appears to close off a claim against those officials as a way for the abortion providers to push to stop some implementation of the law while they fight it in federal court.

“Today’s ruling just closes the last back door,” said Steve Vladeck, a University of Texas law professor.

The state high court’s ruling lands as other Republican-led states push for more restrictive laws in anticipation of a Supreme Court ruling in the next few months that could upend the long-standing constitutional right to abortion.

The legal fight will continue in several cases over the constitutionality of the Texas law, which was written in a way that violates decades of abortion-rights law. Texas lawmakers also wrote the statute to avoid legal challenges that could prevent it from going into effect.

Texas forbade state officials from enforcing the law, and instead gave that authority to private citizens, who can file state civil actions for minimum damages of $10,000 against those who perform abortions.

Other states have looked to implement more restrictive abortion laws, such as a Texas-style proposal from a Missouri Republican that seeks to go even further.

State Rep. Mary Elizabeth Coleman’s proposal would seek to penalize anyone who aids in an abortion of a Missouri resident after six weeks gestation even if the abortion was conducted in a different state. Missouri only has one abortion clinic.

Mary Ziegler, a legal historian at Florida State University College of Law who focuses on reproductive health, said it is hard to imagine a policy like Missouri’s being filed even five years ago, which makes the future of abortion law “even more unpredictable.”

The Missouri proposal makes clear that even if the U.S. Supreme Court reverses Roe v. Wade, the landmark 1973 decision that first established a constitutional right to abortion, it will not settle anything, Ziegler tweeted Friday. States will be able to set their own policies, but states are already trying to dictate what happens in other states as well.

The chaos we see now is just the beginning,” Ziegler said.

The Oklahoma Senate also passed six bills to restrict abortion on Thursday. One of the bills is a Texas-style prohibition on abortions after six weeks of pregnancy and would go into effect immediately after being signed by the governor. The Idaho Senate passed a similar bill last week.

The Florida Legislature sent a 15-week abortion ban to the governor last week. Republican Gov. Ron DeSantis is expected to sign it.

All that state legislation comes as the Supreme Court is considering the constitutionality of a Mississippi law that bans abortion after 15 weeks. That decision is expected before the current term concludes around the end of June. 

The justices during oral argument in December did not appear to support a standard first put in place in Roe v. Wade, when the court ruled that states could not enact laws to ban abortions before viability. That put the line at when a fetus could survive outside the womb at about 24 weeks of pregnancy.

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