Justices on Texas's high court on Thursday sharply questioned whether clinics can challenge a law that banned most abortions in the state because it is enforced by private individuals, just two months after the U.S. Supreme Court allowed the case to move forward.
The clinics are suing over a law, known as SB8, that went into effect Sept. 1 and bans abortions after about six weeks of pregnancy. It allows private citizens to sue anyone who performs and assists a woman in obtaining an abortion after embryo cardiac activity is detected.
A federal appeals court last month asked the Texas Supreme Court to weigh in on whether state officials, including those tasked with doctor licensing, could indirectly enforce the law by taking disciplinary actions against violators.
That could allow the clinics to overcome a novel feature of the law that has frustrated their ability to challenge it in federal court by placing enforcement in the hands of private citizens, rather than the state officials.
The U.S. Supreme Court in December allowed part of the clinics' case to proceed against Texas licensing officials, who they would seek to block from enforcing the law through an injunction.
The clinics contend the law is unconstitutional under Roe v. Wade, the 1973 decision that made abortion legal nationwide and that the conservative-leaning U.S. Supreme Court is now weighing rolling back or overturning in a Mississippi case.
"SB8 is blatantly unconstitutional under 50 years of Supreme Court precedent," Marc Hearron, a lawyer for the clinics, told the Texas high court's nine justices.
But several justices pointed to a provision in the law that says "notwithstanding ... any other law," SB8 would be enforced exclusively through private civil lawsuits. The court's nine justices are all Republican.
"It's pretty definitive," Justice Debra Lehrmann said. "How do you get around that?"
Justice Evan Young asked if the court could just "eliminate" the ambiguity and conclude that SB8 does not allow licensing officials to indirectly enforce the law.
"If you were to do that, that would, at a minimum, provide our clients some certainty," Hearron said. "It would, however, essentially end our challenge."
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