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SCOTUS allows Texas abortion case to continue, ban continues in meantime

Ali Lihan CNHI News and Mike EADS Gainesville Daily Regis | Published on 12/10/2021

AUSTIN, Texas -- After 22 days, the U.S. Supreme Court issued a decision Friday on two cases that seek to challenge Texas' controversial and restrictive abortion ban, a ruling that allows the cases to continue although justices stopped short of pausing the law altogether.

The court, in an 8-1 decision, allowed a lawsuit by Texas abortion providers to proceed in lower courts, but did not stop enforcement of Senate Bill 8, also known as the Texas Heartbeat Act. Instead, abortion providers will resume lawsuits seeking to block the act.

The court did, however, dismiss a separate challenge from the Biden administration. The court determined that the U.S. Department of Justice does not have standing to sue to block the controversial state law.

In essence, S.B. 8 allows third parties to sue doctors, nurses and clinics for providing abortion services – which are legal under the landmark 1973 ruling in Roe v. Wade – to patients. The third party need not have any relation to the patients or their healthcare providers.

The Whole Woman’s Health and Whole Woman’s Health Alliance operates four clinics in Texas. It has suspended abortion services while legal challenges work through the courts. Amy Hagstrom Miller, president and CEO of the group, said the Supreme Court failed to protect the rights of Texas women.

“Texans deserve better than this. This ban will have lasting effects on Texan communities for decades to come,” Miller told CNHI via email. “We’ve had to turn hundreds of patients away since this ban took effect, and there is no end in sight. The Supreme Court has said that abortion is protected by our Constitution, yet they are allowing Texans to be denied that right. This is not okay.”

The law bans abortions after cardiac activity is detected, usually around six weeks of pregnancy, before many women know they are pregnant. It also enables private people to sue anyone who performs an abortion or helps anyone receive one. The law — signed by Gov. Greg Abbott in May — went into effect Sept. 1.

The two cases focused on procedural questions surrounding its enforcement mechanism that skirts current judicial processes by empower Texas residents to sue anyone who aids or abets an individual who receives an abortion.

“With today’s news, the path is now cleared to challenge this horrific law and protect abortion access in Texas,” said Grace Chimene, president of the League of Women Voters of Texas, who advocated against S.B. 8 in the Texas legislature. “The League of Women Voters of Texas will continue to advocate for safe and accessible reproductive rights for all Texans.”

While Friday’s decision can be seen as a victory for abortion providers, in that clinics can bring lawsuits forward against S.B. 8, the court’s refusal to place a stay on the law until it is resolved in the legal system means abortions after six weeks will continue to be illegal in Texas, said David Cohen, a professor of law at Drexel University.

Cohen’s main concerns stem from the court’s removal of the state’s court clerks and Attorney General Ken Paxton as defendants. S.B. 8 opponents sued to prevent the clerks and Paxton’s office from certifying any litigation brought by abortion proponents under S.B. 8 – arguing that such actions would impinge on women’s right to access to abortion services.

“They (the Supreme Court) don’t want to be the bad guys; they want to been seen protecting constitutional rights,” Cohen told CNHI after Friday’s ruling. “… The recourse they’ve given the clinics is very narrow and it’s questionable that it would ever stop S.B. 8.”

The court did not discuss the constitutionality of abortions. Instead, that question went before the court in a Mississippi case on Dec. 1. An opinion on that case has not yet been release


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