The Washington PostDemocracy Dies in Darkness

Supreme Court asked to block Texas abortion law deputizing citizens to enforce six-week ban

The Supreme Court in 2017. (Ricky Carioti/The Washington Post)

Abortion rights advocates asked the Supreme Court on Monday to block a Texas law from taking effect this week that allows private individuals to sue to enforce a ban on abortion after about six weeks of pregnancy.

The law incentivizes citizens to sue anyone suspected of helping a woman get an abortion, including people who drive a patient to a Texas clinic or provide financial help. Under the ban, those who successfully sue an abortion provider or health center worker are awarded at least $10,000.

It would be one of the most restrictive abortion laws in the country, effectively outlawing the procedure at a stage before many women are aware that they are pregnant. Unlike similar bans that have been blocked in court, the Texas law is specifically designed to prevent judges from stopping it before it can take effect because it calls for private citizens — not government officials such as prosecutors — to enforce the measure.

Lawyers for abortion providers told the Supreme Court that the law, which is supposed to take effect Wednesday, “would immediately and catastrophically reduce abortion access in Texas” and probably force many clinics to close.

“Patients who can scrape together resources will be forced to attempt to leave the state to obtain an abortion, and many will be delayed until later in pregnancy. The remaining Texans who need an abortion will be forced to remain pregnant against their will or to attempt to end their pregnancies without medical supervision,” the filing states.

The Supreme Court gave supporters of the law until 5 p.m. Tuesday to respond.

The emergency application was directed to Justice Samuel A. Alito Jr., who reviews such requests from that region of the country. Alito called for the response from the state officials and individuals named in the case.

A Supreme Court review of a Mississippi abortion law could pave the way for many other state laws that restrict or ban the procedure. (Video: Joshua Carroll/The Washington Post, Photo: Melina Mara/The Washington Post)

The request for intervention comes after an appeals court in Texas abruptly postponed a U.S. District Court hearing scheduled for Monday. Opponents of the law had planned to ask a federal judge in Austin to stop the measure from taking effect on Sept. 1.

But the U.S. Court of Appeals for the 5th Circuit called off the hearing in a brief unsigned order. A three-judge panel also rejected a request from abortion rights advocates to take the case on an expedited basis or to put the law on hold pending appeal.

Read the request for Supreme Court intervention filed Monday

Those legal developments injected fresh concern and uncertainty for Texas abortion providers, who say the law is unconstitutional and will subject them to endless lawsuits, shut down clinics and reduce services.

More than 85 percent of women who choose to terminate their pregnancies in Texas are at least six weeks into pregnancy, according to advocates, so the law would prevent nearly all abortions in the state.

“If this law is not blocked by September 1, abortion access in Texas will come to an abrupt stop. Texas has shown it will stop at nothing to force this law into effect,” Marc Hearron, senior counsel at the Center for Reproductive Rights, said in a statement.

In response to the filing Monday, Texas Right to Life legislative director John Seago said, “the abortion industry is using their last, desperate option in an attempt to block the lifesaving Texas Heartbeat Act from taking effect.

“We are hopeful that Justice Alito will examine the compelling arguments raised explaining why the case should be ultimately dismissed.”

Legal experts said abortion rights advocates still have options, but limited time. They are asking the Supreme Court to block the law or to get rid of the appeals court order and allow the district court to hold its planned hearing.

Steve Vladeck, a constitutional law professor at the University of Texas School of Law, said there is a “decent chance” there will still be an opportunity for the district court to convene a hearing and potentially block the law.

“The problem is the chances of that happening before it goes into effect are dwindling by the moment,” Vladeck said. “And for women in Texas who want to avail themselves of their constitutional right to an abortion, that could become virtually impossible by the end of tomorrow night.”

Proponents said they are hopeful that the law, which Gov. Greg Abbott (R) signed in May, will take effect as planned, and that the appeals court order means options for stopping it are limited.

“To have a significant piece of pro-life legislation that takes effect when it was scheduled — that almost never happens,” said John Seago, legislative director at Texas Right to Life, the organization that helped draft the bill. “It’s a phenomenal victory for our movement.”

The Mississippi clinic at the center of the fight to end abortion in America

Abortion opponents nationally are looking to a more conservative Supreme Court to revisit Roe v. Wade’s nearly 50-year guarantee of the right to choose an abortion. The justices this fall will review a Mississippi ban on almost all abortions after 15 weeks of pregnancy.

Federal judges have blocked laws in a dozen states, including Oklahoma and Idaho, that are similar to Texas’s ban on abortion after about six weeks of pregnancy. Proponents call the measures “heartbeat bills” because they say that is when doctors can first detect a fetal heartbeat.

But doctors who oppose the legislation say the “heartbeat” description is misleading. What appears to be a heartbeat at six weeks, they say, is a vibration of developing tissues that could not exist outside the womb.

The Texas law, known as S.B. 8, is more difficult to block than those in other states, according to opponents. By design, the measure is enforced through private lawsuits, not state government officials who are usually defendants in federal constitutional challenges. If no specific individual or institution is responsible for enforcing the law, there is no one for abortions rights organizations to sue.

A coalition, including the Center for Reproductive Rights, Planned Parenthood and the American Civil Liberties Union, used a novel approach to try to stop the law. They asked a federal judge to prevent any of the state’s trial court judges, potentially more than 1,000 throughout Texas, from enforcing the law and to block court clerks from accepting the lawsuits.

State officials have argued in district court that they are shielded from legal liability and that abortion rights advocates do not have legal grounds to sue to block the law in advance of any individual seeking to enforce it in court.

The 5th Circuit panel, made up of three Republican-appointed judges, on Friday granted the request of the Texas attorney general and other defendants to put the scheduled hearing on hold.

Amy Hagstrom Miller — president of Whole Woman’s Health, which runs four clinics in Texas — said her clients will be forced to either travel out of state to access abortion services, carry unwanted pregnancies to term, or terminate their pregnancies using medication secured online without guidance from a health professional.

If the law takes effect, she said, people “will be under surveillance” by those interested in bringing potential lawsuits.

“It’s like putting a bounty on people, and it’s so un-Texan,” she said, alluding to the state’s small-government culture. “Would you want your wife or daughter spied on in this way?”

Caroline Kitchener in Houston and Ariana Eunjung Cha and Robert Barnes in Washington contributed to this report.