Some abortions are temporarily legal in Texas again.
Abortions up to about six weeks in pregnancy can resume at some clinics in Texas for now after a Harris County District Court judge granted a temporary restraining order that blocks an abortion ban that was in place before Roe v. Wade.
In the ruling issued Tuesday, Judge Christine Weems ruled that the pre-Roe abortion ban “is repealed and may not be enforced consistent with the due process guaranteed by the Texas constitution.”
“It is a relief that this Texas state court acted so quickly to block this deeply harmful abortion ban,” Marc Hearron, senior counsel at the Center for Reproductive Rights, said in a press release. “This decision will allow abortion services to resume at many clinics across the state, connecting Texans to the essential health care they need. Every hour that abortion is accessible in Texas is a victory.
Whole Woman’s Health, which operates abortion clinics in McAllen, McKinney, Fort Worth and Austin, said it would resume providing abortions as a result of this ruling.
“We immediately began calling the patients on our waiting lists and bringing our staff and providers back into the clinics,” said Amy Hagstrom Miller, the organization’s president and CEO.
Abortions can resume only at the clinics named in the lawsuit. Besides the Whole Woman’s Health clinics, the others that will resume operations are Alamo Women’s Reproductive Services in San Antonio, Brookside Women’s Medical Center and Austin Women’s Health Center in Austin, Houston Women’s Clinic and Houston Women’s Reproductive Services in Houston, and Southwestern Women’s Surgery Center in Dallas.
A hearing has been set for July 12 to decide on a more permanent restraining order.
[…]
On a press call Tuesday, Hearron declined to speculate on what the temporary restraining order on the pre-Roe ban might mean for other clinics and abortion funds in the state.
“I don’t know that I have an answer to that question,” he said. “I think that’s a legal question that the other clients would want to look at.”
While some abortion access has been restored in Texas, current state law still allows abortions only up to around six weeks of pregnancy, a point at which many people don’t even know they are pregnant.
“So there still will be a large number of Texans who are still going to need to try to find access and appointments outside of the state,” Hearron said.
See here for the background. This will of course be appealed, so as I said before it will ultimately come down to what the Supreme Court says, if they choose to weigh in at all – they may decide to slow roll it, given that the whole thing will be moot in at most about two months. Not deciding when they don’t have to is a specialty of theirs.
As for the question of other providers, the Chron has a bit of input.
It’s unclear whether the injunction applies to clinics that are not party to the suit, such as Planned Parenthood.
The CEOs of Texas Planned Parenthood affiliates said in a joint statement Tuesday that their clinics had no immediate plans to resume offering abortions, but added: “This is a rapidly evolving situation and legal teams are still reviewing this order and its potential implications.”
The case could also offer a lifeline to Texas abortion funds, which provide transportation and other assistance to people seeking abortions, after they shuttered Friday, citing concerns of criminal liability.
Seems like it’s worthwhile to me to at least get the clarity and some assurance that you won’t be arrested for something that may have happened five minutes after Ken Paxton decided it was illegal. I Am Not A Lawyer, your mileage may vary, etc etc etc. I still think they should at least give serious thought to filing their own claims. We’ll see.
The Texas Supreme Court (temporarily, at least) overruled the Harris County judge yesterday:
https://reproductiverights.org/wp-content/uploads/2022/07/TX-SUPREME-COURT_STAY-ORDER-ISSUED__MAND_FILECOPY-002.pdf
SCOTX: When you absolutely, positively, have to have it overruled overnight.
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DELPHI ORACLE DIVINING & MEDIA OBFUSCATION & DISTORTION
It would be highly desirable if the SCOTX were to communicate in a manner that ordinary Texans could easily understand. Especially on an issue of elevated public interest.
The same goes for First COA Justice Peter Kelley, who — individually — issued an order in the wake of the SCOTX stay yesterday, but used the royal “we” while announcing that the motion for temporary relief in that court remains both pending and is partially denied. The docket entry itself omits the “partial”. Who is “we”, one wonders, when only one justice (of 9) issues an order individually. And since when are procedural motions denied in a piecemeal fashion? What about the component that wasn’t denied? Was the SCOTX wrong in its expressed confidence that the lower courts would act expeditiously?
Those gripes duly aired, much of the media coverage of the SCOTX decision from Friday evening is pathetic, if not hysterical and calculated to stir the passions of the ignorant masses.
WHAT DID THE STATE SUPREMES ACTUALLY SAY?
First, the SCOTX order is (arguably) a merits order only to the extent that the high court hasn’t definitively said that the jurisdiction is completely absent (and that it therefore has the authority to impose a stay), but it is otherwise merely a procedural order, i.e. one that temporarily suspends the legal effect of the order being challenged, which is also temporary and will expire soon by its own terms (on 7/12). The Supremes’ stay order doesn’t reverse a definitive merits ruling, much less resolve the disputed legal issues for good. It also appears that the TRO was entered without sufficient or any notice to the state defendants. It’s still an open question as to whether the TRO may be void at least in part if subject-matter jurisdiction was and remains lacking in the court below even if it is not invalid for lack of notice to the restrained parties that are seeking intervention of the appellate courts via mandamus. It’s not a regular appeal because a TRO (unlike a temporary injunction) cannot be appealed.
Second, the SCOTX did NOT stay the TRO as to the DAs, who are defendants in the trial court along with the state regulatory agencies and officials. It is the DAs that are in charge of prosecuting criminal violations, and they apparently have no appetite anyhow to prosecute, or at least not immediately. Unlike the state agencies and officials they didn’t go to the court of appeals attacking the TRO against them or join Paxton’s mandamus petition. But even if a named DA were interested in prosecuting, what difference would the imposition of a 14-day delay make? A hearing on a temporary injunction is coming up, as is required following issuance of a TRO (on 7/12, the same day the TRO expires).
Third, SCOTX questioned whether the trial court possesses jurisdiction to enjoin the defendants, citing to an earlier case in which the Texas sodomy statute was challenged in a pre-enforcement posture (as distinguished from a case in which someone was actually being prosecuted for violating it).
The jurisdictional question of whether a criminal statute can be challenged in a civil suit seeking declaratory/injunctive relief has yet to be addressed. The caselaw is murky on this front, and it’s unclear whether there is a will and intent to actually enforce the pre-Roe abortion statute. If there is no credible threat of enforcement – at least not by big-city DAs named in this lawsuit – there is arguably no valid basis for the trial court to rule on anything except to dismiss the case. On the other hand, even if there is no criminal enforcement, there may be administrative enforcement by the regulatory/licensing agencies, and that may fall within the district court’s jurisdiction to opine upon as to enforceability of rules and conduct of agencies based on and derivative of criminal abortion statutes.
Alas, the plaintiffs’ attorney didn’t even bother to address the jurisdictional issue raised by the SCOTX in the response they filed in the First Court of Appeals, so we’ll have to see what that court does on their own (if anything) or wait for the SCOTX to weigh in after the requested briefing on district court jurisdiction is on file there. It’s unusual to have two appellate courts simultaneously entertain mandamus petitions at that same time – plus accompanying motions for emergency relief — but that’s what we have here.
You can read First Court of Appeals Justice Peter Kelly’s impromptu order here:
https://search.txcourts.gov/Case.aspx?cn=01-22-00480-CV&coa=coa01