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Texas This Week: U.S. Supreme Court will allow legal challenges to Texas abortion law

Two significant rulings related to Senate Bill 8 came down this week. Reese Oxner, breaking news reporter for The Texas Tribune, explains what they mean.

AUSTIN, Texas — In this edition of Texas This Week, Reese Oxner of The Texas Tribune breaks down two major court rulings on the state’s near-total ban on abortion.

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Reese Oxner of The Texas Tribune on SB8 rulings  

Two significant rulings on Texas’ new abortion law came down this week. Senate Bill 8, or the Texas Heartbeat Act, bans doctors from performing abortions once fetal cardiac activity is detected. The law is not enforced by the State, but rather allows almost anyone, anywhere to sue the doctor and anyone else who helps a woman get an abortion and receive at least $10,000 if they win.

Reese Oxner, breaking news reporter for The Texas Tribune, joined KVUE’s Ashley Goudeau to break down what these rulings mean.

Ashley Goudeau: Let’s start with the Supreme Court ruling. The justices heard arguments not on the actual law itself, but whether abortion providers can sue the State, in part because the State is not who enforces the law. Explain to us the basis of the lawsuit and the ruling.

Reese Oxner: “Sure. So yeah, the Supreme Court is really, they’re looking at the law, but they’re not looking at the overall constitutionality, necessarily. And they’re not looking at abortion rights in general. They’re looking at kind of the technical things that go along with the law that make it possible. And so, today [Dec. 10], you know, I would say it was kind of a mixed bag. Both sides were kind of claiming it as a partial victory, whereas abortion providers later kind of were more strongly considering this a loss, calling it a dark day and that it’s not very sustainable to keep going on with this law in place. 

So, essentially, the Supreme Court left the law in effect. We were expecting to possibly see them limit the enforcement of it because that was the biggest concern that Supreme Court, Supreme Court justices seemed to have. And that enforcement, of course, is allowing private citizens to sue, under the law, anyone who aids and abeits an abortion for at least $10,000 damages, if won. And so, that’s where it kind of was being targeted today. And the Supreme Court essentially put that back on the U.S. District Court, allowing that lawsuit to resume to determine the constitutionality of the law.”

Goudeau: Abortion is still banned under SB8 in Texas

Oxner: “Yeah, so SB8 is continuing in its full force. It’s been a fight for, for a little bit over 100 days now. There was a temporary two-day ban, but that was quickly rolled back, or a temporary block of the law. And so, effectively, abortion providers aren’t going to be resuming their procedures just because the Supreme Court allowed the lawsuit to continue.” 

Goudeau: Also this week, a district judge made a ruling in a case that actually did question the constitutionality of the law. Talk to us about those lawsuits that were filed.

Oxner: “Sure. So, the thing to note about this, this case in particular and this judge’s order, is that it’s, it’s in State court. And so he had a very limited jurisdiction of what he could actually do. And so, see, I’ll break it down to two things. So, the first thing: it directly impacts the 14 cases his court was in charge of. So, these are 14 cases filed by individuals or organizations challenging the law’s constitutionality. So, these are doctors or abortion funds or even just pro-abortion groups. And so they were challenging, mostly, Texas Right to Life because that organization is anti-abortion and promised to sue people who violate the law. And so, basically, what the judge did is he declared it unconstitutional in those lawsuits and, and said that Texas Right to Life can’t sue those plaintiffs. He also said the law overall is unconstitutional. 

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But that kind of order, because it’s coming from the State court and because of the type of order it was, isn’t necessarily binding on a statewide basis. And so what it can be used as is as an argument in other individual lawsuits. So, say an abortion provider is sued under SB8, they can point to this as precedent and say, ‘See, this judge declared this law unconstitutional,’ and that might help their case in getting the case dismissed, their lawsuit dismissed. Of course, that doesn’t necessarily mean they won’t, they won’t be put into financial burdens because they have to pay for attorney fees, and under SB8, there’s no way for those being sued under the law to recoup those legal fees.”

Goudeau: Let’s talk about some of the areas that the judge found unconstitutional under SB8. He categorized his points in three main areas. So I want you to – we’re going to go through them and I want to explain what they mean, starting with standing for an injured persons.

Oxner: “Sure. So that that really refers to one of the more dangerous kind of parts of SB8 that abortion providers are pointing to, which is that anyone in Texas can sue if they suspect someone aided or abetted an abortion disallowed by the law. And so, you don’t necessarily, you don’t have to know that person whatsoever. You could have heard it through, you know, a piece of gossip, as long as you have credible reason to believe you can file a lawsuit. And so, that’s concerning because, yeah, traditionally in a legal setting, you have to demonstrate standing. You have to demonstrate how you were injured by something, and that’s why you’re suing. SB8 doesn’t require that as a baseline for coming to a suit.”

Goudeau: Judge David Peeples also says the law allows punishment without due process. Explain how that plays a factor.

Oxner: “Yeah, I mean, I think one of the, that kind of trademark pieces of this bill is that it threatens financial ruin to abortion providers. And so, for every case won, right, they get $10,000 for – a private citizen can get a $10,000, you know, $10,000 in damages if they win the case. But there’s also legal fees associated with it, you know. If you get sued 20 times over one abortion, which technically can happen under SB8, you know, you’re paying for all those different legal fees, you’re shuttering businesses. There’s a chilling effect. So, essentially, it allows clinics to be inundated with lawsuits with no chance of recovering those legal fees before they’re even found guilty of violating the law.”

Goudeau: Finally, Judge Peeples wrote that SB8 allows delegation of executive power to private persons.

Oxner: “Texas’ law is so novel and the mechanism that it goes by is so unique because it explicitly says that the State can’t enforce this law, that State officials can’t, law enforcement can’t. Instead, it relies on private citizens, anyone in the state to file these lawsuits. And so, essentially, the argument is that they’re acting as agents of the State at that point because they’re the primary or only focus of enforcement that can happen. And so, that’s kind of the argument there that private citizens are being deputized in that way.”

Goudeau: So, tell us what’s going to happen next?

Oxner: “Yeah, I mean, we’re really playing a waiting game again, like so many other times during this, this saga of this abortion law. It’s, on the Supreme Court side, they put it back towards the U.S. District Court. 

This case is not a new case. Abortion providers have been suing since the summer, before the law came into effect, trying to stop it before it came into effect and then continuing to fight it after it did. And so, the Supreme Court basically revived these legal proceedings because it’s been pretty much frozen after the Fifth Circuit [Court of Appeals] canceled a hearing that was supposed to go over its constitutionality and kind of took over the case. And we haven’t heard anything since. The Supreme Court was able to essentially leapfrog the appellate court, the Fifth Circuit, in order to get the case going again.”

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