However, abortion-rights advocates have been relying on federal courts as a more efficient path to get a definitive ruling against the law. The decision Friday effectively closes off the route for such a challenge that the U.S. Supreme Court left open in December, when it rejected an effort to block state-court clerks and judges from accepting private lawsuits under the new law. That ruling said abortion providers might be able to press their litigation against state medical licensing officials because of an argument that they have a role in enforcing the statute.
The U.S. Supreme Court decision in December was an enigma of sorts, with conservative Justice Neil Gorsuch penning the key opinion that kept the federal-court lawsuit alive by a slender thread. The decision prompted debate about whether the suit really had a prospect of continuing or whether the decision was an outright loss for abortion-rights advocates. The latter camp now seems vindicated.
In January, a divided panel of the federal appeals court based in New Orleans elected to ask the Texas Supreme Court to resolve the question of whether state officials are empowered to take action under the law. The decision Friday said they are not, which means they can’t be targeted as defendants in a federal court suit that might declare the law unconstitutional.
“We conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly,” Justice Jeffrey Boyd wrote in the court’s 23-page opinion.
The ruling means that the abortion ban law, and the $10,000 bounty it offers to anyone who can prove someone facilitated an abortion that violates the statute, seem likely to continue to discourage doctors and other health care workers from providing abortions in Texas past six weeks gestation — before many women learn they are pregnant. The new law has sharply decreased the number of abortions performed in clinics the state, leading to reductions of between 50 percent and 60 percent, according to abortion rights groups and state statistics. Yet new data shows that thousands of patients are circumventing the ban by traveling out of state for the procedure or ordering abortion pills online, undermining claims by supporters of the ban that it is preventing most abortions from taking place.
Still, advocates stress that neither of those options is a panacea, given that many people can’t afford to travel out of state, are already past the 10-week mark that pills are effective, or don’t know how to contact the international groups that are willing to mail patients the drugs in violation of the state’s ban.
While no state has yet enacted a copycat of the Texas law, a handful of states, including Idaho and Oklahoma, are close to doing so, likely drawing additional legal challenges that could become moot if the Supreme Court overturns Roe v. Wade later this year and gives states a green light to ban abortion early in pregnancy.
Courts will also likely continue to grapple with the private enforcement mechanism of Texas’ law, which other states are working to apply to other areas of law, including gun control.