Perspective: Texas abortion providers “won” in court Friday. The future is bleaker than ever.
Texas’s law was designed to allow the state to end abortion access without having to defend its law as constitutional in court. It did so through its unique enforcement mechanism, involving private lawsuits for damages of $10,000 or more. The idea — treated with unjustified respect by the Supreme Court and the U.S. Court of Appeals for the 5th Circuit — was to remove government officials from the process, supposedly making it impossible for abortion providers to sue to stop the law.
The gambit almost worked. Indeed, the way the court’s opinion is written suggests the gambit might yet achieve its objective in this case — because the court greatly limited the potential relief that abortion providers can obtain.By a vote of 8 to 1, the court concludes that the providers’ lawsuit could proceed against certain state licensing officers who oversee the state’s licensing of doctors and nurses. Only Justice Clarence Thomas dissented on that point.
Because the providers can sue only state licensing officials, it’s possible that at best they can obtain a ruling that state licensing boards cannot discipline doctors for violating S.B. 8. In other words, the majority disallowed suits that had much greater potential to generate a ruling that could prevent private lawsuits under Texas law. Yet it’s precisely the threat of those lawsuits that have stopped providers from offering abortions.
Equally troubling, the majority’s analysis seems to allow a state — whether Texas or another — to come back with a revised version of an S.B. 8-style law that would prohibit suing even the licensing officials. That’s because the majority’s’ conclusion that the providers can sue those officials rests on its assessment that the state, in S.B. 8, had not withdrawn the licensing officials’ authority to discipline providers for violating state law.
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