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Biden administration: Texas abortion ban, in place despite constitutional questions, offers road map for other states

The clinic doctor at Houston Women's Reproductive Services discusses ultrasound results with a patient on Oct. 1. (Evelyn Hockstein/Reuters)
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Clinics in Colorado, New Mexico and Kansas are seeing an influx of patients from Texas fleeing the nation’s most restrictive abortion law, which bars the procedure as early as six weeks into pregnancy and remains in effect despite multiple court challenges and an acknowledgment by the Supreme Court that there are “serious questions” about its constitutionality.

Texans now account for the majority of patients at one Oklahoma clinic, where staff members are working long hours to handle the out-of-state demand. Other patients, including teenagers and undocumented immigrants, say financial and child-care constraints limit their ability to leave Texas to terminate their pregnancies.

The firsthand accounts from abortion providers and desperate patients come in court filings this week in support of the Biden administration’s effort to block the law, which was intentionally designed to avoid legal scrutiny.

Because the ban is enforced by citizens filing lawsuits, rather than by state officials, both the Supreme Court and a federal appeals court have refused requests to immediately suspend it pending further review. Those actions did not directly address whether the law violates Roe v. Wade, which guarantees the right to abortion before viability, typically around 24 weeks of pregnancy.

The state of Texas has argued that the only way to challenge the constitutionality of the law is to wait until a doctor is sued under its provisions in state court.

In Texas, doctors divided over whether to resume abortions after six weeks

Justice Department lawyers and constitutional law scholars countered in their court filings that state officials should not be permitted to do an end run around the judicial system by outsourcing enforcement of the law to private citizens. Allowing the ban to stand, they said, provides a road map for state legislatures to craft laws that infringe on other constitutional rights. States could ban the sale of firearms, the expression of particular views or worship by certain faiths.

“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the U.S. Court of Appeals for the 5th Circuit. “Partisans of one stripe or another might cheer these outcomes, but they should horrify anyone committed to the principle that this diverse nation is bound by one Constitution.”

In allowing the law to take effect Sept. 1, the Supreme Court’s conservative majority made a point of saying that abortion providers and civil rights groups had “raised serious questions regarding the constitutionality of the Texas law at issue.”

A U.S. district court judge in Austin, who granted the Justice Department’s request last week to block enforcement of the ban, called its novel design an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.”

But less than 48 hours later, the 5th Circuit temporarily suspended that judge’s ruling and reinstated the ban. The brief order from the conservative-leaning court was not a ruling on the merits of the law.

A three-judge panel could rule as soon as this week on whether to leave the ban in place while litigation continues.

Mark Lee Dickson paved the way for Texas abortion ban, one small town at a time

Even if the law is blocked when a court eventually considers the substance of the ban, the conflicting rulings over the past six weeks and slow-moving nature of the legal system have already created uncertainty for abortion providers and confusion for women in Texas.

Melissa Murray, an expert on constitutional law and reproductive rights at New York University’s law school, said that was always the plan of the Texas lawmakers and antiabortion advocates.

“What they want is for abortion to be completely inaccessible to pregnant people in the short term, but in the long term to have the providers so cowed by the uneven landscape and so afraid of litigation that they basically take the supplier out of this market entirely,” she said.

As an example, Murray noted that about half of the abortion clinics in Texas closed during the course of a separate legal battle over restrictions imposed on doctors and clinics several years ago. Few reopened after the regulations were struck down by the Supreme Court in 2016.

The new Texas law bars state government officials, who would typically be sued by abortion providers before such a statute took effect, from enforcing the ban. Instead, private individuals are empowered to file lawsuits against anyone who helps a woman get an abortion after a physician detects cardiac activity in the womb. Those who successfully sue an abortion provider or clinic worker are awarded at least $10,000.

In a court filing this week on behalf of Planned Parenthood, one nurse practitioner in Oklahoma said the Texas patients are “uniformly terrified” because the abortion ban “makes women feel like there’s a bounty on their head for receiving health care.”

Texas Attorney General Ken Paxton (R) told the appeals court last week that the federal government has no authority to sue the state because state officials are not “responsible for the filings of private citizens” and that courts cannot “enjoin the world at large” from taking legal action under the law known as S.B. 8.

Alito defends letting Texas abortion law take effect, says Supreme Court critics want to intimidate justices

Regardless of how the 5th Circuit rules, the issue is likely to then be appealed to the Supreme Court. In its initial refusal to stop the ban, the high court’s conservative majority agreed with Paxton that opponents — in that case, the challenge was filed by abortion providers — had not shown they were suing the proper defendants.

The order was backed by Justices Clarence Thomas, Samuel A. Alito Jr. and all three of President Donald Trump’s nominees to the court. None of the five joined Chief Justice John G. Roberts Jr., who called the law “not only unusual, but unprecedented,” and called for it to be put on hold pending further review.

The Justice Department case is separate, but procedural hurdles also remain, said Mary Ziegler, a Florida State University law professor and author of “Abortion and the Law in America: Roe v. Wade to the Present.” The department must show it is suing the proper defendants and has legal grounds — or skin in the game and enough of an injury — to challenge the ban.

A more likely path to halting the law, Ziegler said, would come from an abortion provider defending herself in a lawsuit filed by a member of the public. That would allow the provider to raise as a defense that it is unconstitutional to prohibit abortion before viability. At least three individuals have sued San Antonio physician Alan Braid, who announced in a Washington Post column that he had performed an abortion after the six-week mark. But no state court hearings have been held in those lawsuits.

In its court filing, the Justice Department said the U.S. government is not claiming authority to sue any state that passes an unconstitutional law, but felt it had to take action in this instance.

The design of the Texas law and the deliberate effort to avoid judicial review has led to an “exceptional circumstance,” the department said, that gives the federal government the authority to step in.

Ziegler noted that the Justice Department’s claims are distinct from the initial case filed by abortion providers against state judges and court clerks, which the 5th Circuit rejected last month, saying it was not clear that federal courts have a role in reviewing the state law.

The fact that the Justice Department has taken this step on behalf of the entire federal government, she said, might give the court more pause than in the first round.

“It’s not impossible to imagine the court viewing this differently,” Ziegler said. “What hasn’t changed on the court is who is on the court and their presumed views on abortion.”