Texas abortion law relies on the power of state licensing boards (1)

Abortion providers and patients on Thursday sought to convince the Texas Supreme Court to rule that state boards overseeing doctors, nurses and other healthcare professionals can enforce a law banning abortions after six weeks of gestation.

A contrary ruling would effectively end a federal lawsuit challenging the validity of Texas’ SB 8, said Marc Hearron of the Center for Reproductive Rights. Hearron represents Whole Woman’s Health, other providers and patients.

SB 8 gives state councils indirect enforcement power, Hearron said. Eight U.S. Supreme Court justices said the same thing in a December decision, Justice Debra Lehrmann noted during oral argument.

But she also said the language of the law is clear, which could lend credence to the state’s argument that no one except private citizens can enforce the anti-abortion provision. SB 8 grants “exclusive” power to enforce its provisions to private citizens and prohibits any state official from taking action against anyone who performs, aids or abets an abortion, Texas Solicitor General Judd E said. Stone II (R).

A move by state officials would leave abortion providers and patients with no one to sue to stop enforcement of SB 8, which bans abortions at a stage when most people don’t even know they are pregnant. At most, they could ask state trial courts to block individual private citizen lawsuits on a case-by-case basis.

It would also have a major impact nationally, as it would give the green light to other states to enact similar, for now, unconstitutional laws restricting abortion that the challengers would be essentially powerless to fight. Already, lawmakers in Florida, Arizona and West Virginia are on the verge of doing so.

strained suppliers

Since SB 8 went into effect nearly six months ago, abortion providers have seen a dramatic increase in out-of-state abortions in neighboring states of Oklahoma, New Mexico, Kansas , Colorado and Missouri, Dr. Iman Alsaden, medical director of Planned Parenthood Great Plains, said at a press conference after the hearing.

From September 1 to the end of 2021, Planned Parenthood Health Centers in these states saw an almost 800% increase in the number of Texas abortion patients, compared to a year ago.

Abortion providers in neighboring states are operating with limited resources and are overworked and inundated with calls from pregnant women who can be seen in a month at the earliest, said Kathaleen Pittman, clinic administrator at Hope Medical. Group for Women in Shreveport, Louisiana. Hope Medical has seen a 65% increase in the number of patients from Texas in the months since the law took effect, leaving many Louisiana patients with no choice but to move out of state to get treatment.

“Abortion providers alone cannot solve this problem,” Pittman said. “The degree of control the Texas government has over these women is horrendous.”

Abortion providers and advocates hope some relief will come from the decision of the state’s highest court. But Hearron, who also appeared at the press conference, said the “best outcome” in the case would be a ruling preventing state boards from disciplining health care providers or revoking their licenses for violating the law. SB 8.

However, “this will not stop the bounty-hunting program or fully restore abortion rights to the state,” he added.

Herron warned that the US Supreme Court’s refusal to block the law is a ‘worrying sign’ that the justices are on the ‘precipice of a reversal’ Roe v. Wade, with whom they have the chance to make this term Dobbs v. women’s health organization. This lawsuit was prompted by Mississippi’s 15-week abortion ban.

clear law

The law is very clear that only private citizens can enforce it, Stone said during oral arguments Thursday. SB 8 specifically identifies a private civil suit as the only means of enforcement, he said.

But as Lehrmann pointed out, the Supreme Court’s December decision could present a big stumbling block to that argument. Eight U.S. Supreme Court Justices have said it appears that members of state health professional boards can, at least indirectly, apply SB 8.

We are not going to “snub” the highest court in the land, she said.

“Of course not,” Stone said. But the Supreme Court was reviewing the case on an expedited basis. The issue of councils’ ability to enforce the law has not been fully informed and debated, he said. That must ultimately be decided by Texas’ highest court, he said.

The ruling by the nation’s highest court only offered vendors a very narrow avenue of redress that revolves around a matter of statutory interpretation best left to Texas’ highest court, the court has ruled. United States Appellate for the Fifth Circuit by referring the case to state court. judges.

The U.S. Supreme Court concluded the case could likely be sued against state medical boards after reviewing the text of the statute, just as the Texas court was asked to do, Hearron said. . And the Texas court should come to the same conclusion — that SB 8 preserves the collateral enforcement authority of counsel, he said.

Rather than answering the question clearly, the law is ambiguous, Hearron said.

Statutory building

The case involves a highly technical question of statutory interpretation – whether SB 8’s statement that the ban “shall be enforced exclusively through private civil actions” outweighs a saving clause that preserves the ability of councils to enforce “any other law which regulates or prohibits”. Abortion.”

A “notwithstanding” clause giving the Health and Human Services Commission enforcement power over other sections of the law is also important in resolving the issue. These provisions, taken together, prove that boards still have some power to deal with alleged violations of SB 8, Hearron said.

Would this whole case be solved if the Texas judges read the word “straight” into SB 8, Judge Jeffrey S. Boyd asked.

No one reading the law as written would conclude that it provides for “stealth” enforcement, the solicitor general said.

Judge Evan A. Young also asked for clarification on the effect of SB 8 on professional disciplinary rules. For example, the state medical practice law requires physicians to report any lawsuits against them to the board. Should they still report SB 8 cases, he asked.

Stone said the law was unclear, but probably not. Hearron, however, asserted that SB 8 would still allow the medical board to take disciplinary action against a physician who failed to report an SB 8 lawsuit, as reporting is mandatory.

What if the court resolves the ambiguity and adopts the US Supreme Court’s reading of SB 8 or holds the opposite, Young asked Hearron.

It would give us certainty, Hearron said. If the state supreme court rules that officials have no enforcement power, that will effectively end the federal pre-execution prosecution, he said. But, if the court goes the other way, the suppliers will be able to sue those responsible, he said.

SB 8 is clearly invalid under current U.S. Supreme Court precedent because it prevents people from exercising a constitutional right to terminate a pregnancy before viability, Hearron added.

Chief Justice Nathan L. Hecht and Justices John Phillip Devine, Jimmy Blacklock, Jane Bland and Rebeca Aizpuru Huddle also heard arguments.

The American Civil Liberties Union Foundation, Morrison & Foerster LLP, Johns & Hebert PLLC, Planned Parenthood Federation of America, ACLU Foundation of Texas Inc. and Lawyering Project are also representing plaintiffs.

The Texas Attorney General’s Office, Hacker Stephens LLP and Mitchell Law PLLC are also representing the defendants.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charity founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Whole Woman’s Health v. Jackson, Texas, No. 22-0033, pleadings of 02/24/22.

Milton S. Rodgers