Texas clinics’ lawsuit over abortion ban ‘effectively over’

The Texas Supreme Court on Friday dealt essentially a final blow to abortion clinics’ best hopes of stopping a restrictive law that has sharply curtailed the number of abortions in the state since September and will now fully stay in place for the foreseeable future.

The ruling by the all-Republican court was not unexpected, but it slammed the door on what little path forward the U.S. Supreme Court had allowed Texas clinics after having twice declined to stop a ban on abortions after roughly six weeks of pregnancy.

It spells the coming end to a federal lawsuit that abortion clinics filed even before the restrictions took effect in September — and were then rejected at nearly every turn, and in nearly every court, for six months.

“There is nothing left, this case is effectively over with respect to our challenge to the abortion ban,” said Marc Hearron, attorney for the Center for Reproductive Rights, which led the challenge against the Texas law known as Senate Bill 8.

Although Texas abortion clinics are not dropping the lawsuit, they now expect it will be dismissed in the coming weeks or months.

It is likely to further embolden other Republican-controlled states that are now pressing forward with similar laws, including neighboring Oklahoma, where many Texas women have crossed state lines to get an abortion for the past six months. The Republican-controlled Oklahoma Senate on Thursday approved a half-dozen anti-abortion measures, including a Texas-style ban.

Texas’ law leaves enforcement up to private citizens, who are entitled to collect what critics call a “bounty” of $10,000 if they bring a successful lawsuit against a provider or anyone who helps a patient obtain an abortion.

The Texas law bans abortion after roughly six weeks of pregnancy and makes no exceptions in cases of rape or incest. Abortions in Texas have plummeted by about 50% since the law took effect, while the number of Texans going to clinics out of state and requesting abortion pills online has gone up.

In December, the U.S. Supreme Court decided to keep the law in place and allowed only a narrow challenge against the restrictions to proceed. The decision by the Texas Supreme Court turned on whether medical licensing officials had an enforcement role under the law, and therefore, could be sued by clinics that are reaching for any possible way to halt the restrictions.

But writing for the court, Justice Jeffrey Boyd said those state officials have no enforcement authority, “either directly or indirectly.”

Republican Texas Attorney General Ken Paxton celebrated the decision that he said renders the lawsuit “essentially finished.” Anti-abortion groups, who pushed GOP lawmakers to approve the law, also called it a significant victory.

“This is a win for thousands of unborn Texans and I’m proud to defend those who do not yet have a voice,” Paxton said. “I will fight relentlessly to stop gruesome abortion practices from taking more innocent lives.”

Texas abortion providers had already acknowledged they were running out of options and that the law would stay in place for the foreseeable future.

“Because of the U.S. Supreme Court’s repeated refusal to intervene for more than half a year, Texans are living in a state of sustained chaos, crisis, and confusion – and there is no end in sight,” Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said Friday. “Tragically, this attack on reproductive freedom now continues uninterrupted in Texas and across the country.”

Even though the Texas law is more restrictive than any in the country, the future of abortion rights in the U.S. is likely to come down to a Supreme Court decision later this year over a separate case out of Mississippi. That one amounts to a direct challenge of Roe v. Wade, the landmark 1973 case that affirmed the constitutional right to an abortion.

In December, the court’s conservative majority signaled a willingness to roll back abortion rights across the country, which clinics fear could allow Texas and other GOP-controlled states to ban abortion outright.

The number of abortions in September and October in Texas fell by about 50% compared to the same months a year earlier, from 4,511 in September 2020 to 2,197 in September 2021, and from 4,650 in October 2020 to 2,251 in October 2021, according to state health figures.

But that data only tells part of the story. Researchers say the number of Texas women going to clinics in neighboring states and going online to get abortion pills by mail has risen sharply since the law took effect.

A study released this month showed that from September to December, nearly 1,400 Texans a month were going to neighboring states for abortions. The study from the University of Texas at Austin’s Texas Policy Evaluation Project collected data from 34 of 44 open clinics in Arkansas, Colorado, Kansas, Louisiana, Mississippi, New Mexico and Oklahoma.

It found that about 5,600 Texans went to the clinics in nearby states over those months compared to just over 500 for the same period in 2019.

Another study led by a University of Texas researcher found an increase in the number of women requesting abortion pills from the overseas nonprofit Aid Access. The study, published in the medical journal JAMA Network Open, found that during the first week of September, requests per day jumped to about 138 compared to a previous average of 11. Over the subsequent weeks in September, requests averaged 37 a day. Then, through December, the average was 30 per day. Researchers noted they didn’t know if all requests resulted in abortions.