Emergency Stay Requested Ahead of Texas Abortion Bill’s Effect

On Monday an emergency application for writ of injunction or to vacate stay of district court proceedings was filed to Justice Samuel Alito of the Supreme Court of the United States. The stay was filed on behalf of the Whole Woman’s Health Clinic and other women’s health clinics and providers against Judge Austin Reeve Jackson, Ken Paxton, and assorted Texas citizens. The case is in regards Texas Senate Bill 8, which imposes restrictions on the facilities and providers of abortions in the state of Texas.

S.B. 8 provides that “a physician may not knowingly perform or induce an abortion . . . if the physician detect[s] a fetal heartbeat,” a term that the Act defines to include even embryonic cardiac activity that appears at approximately six weeks in pregnancy. The bill also makes it unlawful for any person to “aid[] or abet[]” an abortion prohibited by the law, including by helping to pay for a prohibited abortion, or even merely to intend to provide or assist with a prohibited abortion. S.B. 8 § 171.208(a)(2), (b)(1). Finally the bill does not permit local prosecutors or the health department to bring charges. Instead the S.B. 8 may be enforced only by state courts via civil-enforcement actions that “[a]ny person” can bring against anyone alleged to have violated the ban b y performing or assisting with a prohibited abortion, or by intending to do so. Id. § 171.208(a).

The petitioners claim that the prohibition runs contrary to prior law. Also, they argue the portion that prohibits enforcement by the executive and permits enforcement by citizens of Texas who have no direct standing regarding the procedure means that the cases can be prosecuted in all jurisdictions and by any parties, who have the additional incentive of a mandatory fee paid to the plaintiff.

The bill is due to take effect Wednesday. In the lower courts, a stay of the full proceedings has been granted pending resolution of a claim of sovereign immunity as to certain defendants. The plaintiffs argue that this stay of the proceedings will permit the law to take effect, irreparably harming the lawful parties and permitting many nuisance lawsuits to be filed. In the alternative, the plaintiffs seek an injunction prohibiting the law from taking effect until the resolution of the case is completed.

The plaintiffs are represented by Planned Parenthood Federation of America and the Center for Reproductive Rights.