Texas abortion providers have asked the U.S. Supreme Court to take up their challenge to the state’s law that nearly bans abortion on an expedited basis without waiting for an appellate court to make a decision.
The providers made the request more than three weeks after the court refused to block the law on a 5-4 vote, citing procedural difficulties but emphasizing that it was not ruling whether the statute is constitutional. In a request filed Thursday, providers and other abortion rights organizations asked the court to grant a petition for a “certiorari before judgment,” a rarely used procedure where the high court would immediately review the decision of a district court without an appeal having been decided by a federal appellate court.
The Supreme Court may decline to grant this request. Under court rules, the method can be used “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
Attorneys for the providers asked the court to immediately review the core issue of the case — whether a state can prevent federal court review of a law that blocks constitutional rights by delegating enforcement to the general public through lawsuits.
The new law went into effect Sept. 1 and has forced clinics to stop offering procedures after approximately six weeks of pregnancy.
“The Texas Legislature has openly defied federal law and has done so in a way purposely designed not only to deprive Texans of their constitutional right to abortion but also to forestall federal judicial protection of that right,” the filing stated.
John Seago, legislative director for the prominent anti-abortion group Texas Right to Life, called Thursday’s filing a “last-minute Hail Mary.”
“This new filing of the Supreme Court does not seem to be a reasonable legal tactic,” Seago said. “This is just another development in the abortion industry’s desperate actions to try to stop this bill from saving lives.”
The new law, originally known as Senate Bill 8, is being challenged in other high-profile cases as well. The U.S. Justice Department sued the state of Texas on Sept. 9 in an effort to block its enforcement. A hearing in that case will be held Oct. 1. Meanwhile, another effort from the abortion providers sits in 5th U.S. Circuit Court of Appeals — considered one of the nation’s most conservative appeals courts. According to Thursday’s filing, the appeals court will not hold arguments earlier than December.
Seago said he believes the Oct. 1 hearing for the Justice Department lawsuit “is the most credible threat at this point” to the abortion law.
In its initial decision related to the state’s abortion law, the Supreme Court this month emphasized that the law could continue to be debated in state courts. At least two lawsuits were filed against a Texas doctor who performed an abortion prohibited by the new law, and those cases could be escalated to higher courts and test the statute. But the providers say that would take too long.
“The few cases pending in state court could take months, if not years, to wend through the state-court system before they could provide statewide relief,” providers wrote in Thursday’s filing. “And if someone sued under S.B. 8 prevails and the claimant chooses not to appeal, petitioners will have no opportunity to receive a statewide ruling.”
Under the law, anyone in the U.S. can file a lawsuit against someone who aids a person getting an abortion and, if they win, are entitled to at least $10,000 plus their legal fees from the party they sued.
Fearful of lawsuits causing financial ruin, all major Texas abortion clinics came into compliance with the law by the time it came into effect. Experts estimate the law makes more than 85% of the abortions that normally occur in the state illegal.