In the complicated litigation over the Texas Heartbeat Act, also known as SB8, which prohibits abortion once a fetal heartbeat can be detected, the Texas Supreme Court just handed a major victory to pro-life supporters of the law. The justices ruled that the administrative agencies mentioned in the law have no enforcement responsibilities with regard to it and therefore can’t be sued in an effort to block the law.
To understand the importance of the ruling, we need to review the history surrounding the law and the legal challenges to it.
May 2021 – the Heartbeat Act (SB8) is signed into law by the Texas governor, to take effect September 1.
July 2021 – Planned Parenthood announces it will sue Texas to block the law, citing Roe v. Wade.
September 1, 2021 – SB8 takes effect. Planned Parenthood’s legal efforts to block the law are rejected by the 5th U.S. Circuit Court of Appeals after abortion sellers received an initial positive ruling from a district court judge. An emergency petition to the U.S. Supreme Court to block the law is pending.
September 2, 2021 – U.S. Supreme Court declines, in a 5-4 ruling, to intervene to block SB8. Also in September, the U.S. Department of Justice (DOJ) files its own lawsuit in an attempt to get SB8 ruled unconstitutional. Planned Parenthood files a second request with the Supreme Court to block the law.
October 2021 – U.S. District Court Judge Robert Pittman issues an injunction blocking the law, which was overturned by the 5th Circuit almost immediately. The U.S. Supreme Court agrees to hear an emergency appeal from both the abortion sellers and the DOJ on November 1.
December 2021 – The U.S. Supreme Court issues two rulings. First, it denied DOJ’s request to block the law. Second, in the abortion sellers’ case, the high court dismissed several of the named state defendants who had no authority to enforce any of the provisions of SB8. It left open the question of whether a couple of administrative agencies named in the lawsuit were proper parties and sent the case back to the 5th Circuit to make those determinations.
January 2022 – The U.S. Supreme Court turns down a request from the abortion sellers to send the case back to the abortion-friendly district court judge rather than the 5th Circuit. The 5th Circuit requests that the Texas Supreme Court address the Texas law question as to whether the administrative agencies named in the lawsuit had any enforcement responsibilities under SB8.
March 11, 2022 – The Texas Supreme Court answers the 5th Circuit’s question and says those agencies do not have enforcement responsibilities.
The bottom line of the federal litigation thus far is that there are no Texas state officials or agencies that have enforcement responsibilities under SB8.
That’s by design, and hugely important. And the abortion industry is hopping mad about that.
The law’s most unique feature includes private enforcement actions brought by private individuals in Texas state courts against abortionists who commit, and those who participate in enabling, illegal abortions. A successful lawsuit could result in a $10,000 damage award in favor of the private individual who brings suit.
As we’ve explained before, abortion regulations are typically enforced by government officials and law enforcement agencies. When abortion sellers go to court to block such laws and have them declared unconstitutional, they first ask for injunctions directed at those readily identifiable government enforcement officials ordering them not to enforce the law. Once that is accomplished, the case moves forward to arrive at a final decision regarding the constitutionality of the law.
But with SB8, which can be enforced by anyone except Texas officials, there’s no one for the abortion industry to identify and ask a court to issue an injunction against. And without such a person, a court can’t address the underlying arguments about the constitutionality of the law, either.
Except – and here’s what gets the abortion industry so exercised about the Texas law – an abortionist can raise the law’s alleged unconstitutionality after it is sued by one of those private individuals who learns of an illegal abortion performed after a heartbeat is detected. So why won’t they do that, rather than traveling to the U.S. Supreme Court several times in a vain effort to obtain relief they are not entitled to?
The answer is simple. Abortionists don’t like being sued, and they certainly don’t want to risk the imposition of SB8’s fixed damages amount of $10,000 in favor of the person who filed the lawsuit.
For Planned Parenthood, it’s all about the money.
So, they’ve been looking for an easier way to block the law, and keep failing, at least in the federal courts.
What happens next?
The 5th Circuit will now look at the Texas Supreme Court’s decision and will very likely dismiss what remains of the case brought by the abortionists. That would be a huge blow to the abortion industry.
That will leave the DOJ’s case against Texas, which looks even less likely to succeed than the abortion sellers’ case. It also leaves several state court challenges by Planned Parenthood and others against SB8 as well.
The case is Whole Women’s Health v. Jackson.
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