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The Texas Tribune
The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.
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The U.S. Supreme Court in Washington, D.C., on May 28, 2020. (REUTERS/Graeme Sloan)
By Allyson Waller
The U.S. Supreme Court has agreed to fast-track two Texas cases involving the state's near-total ban on abortion, but refused to halt the law from being enforced.
The high court has scheduled oral arguments for Nov. 1.
The court will take up the cases brought forward by abortion providers and the U.S. Department of Justice against the ban, according to a court opinion from Justice Sonia Sotomayor on Friday. It will review the procedural merits of both cases, rather than the constitutionality of abortion, while enforcement of Senate Bill 8 remains in effect.
In her opinion, Sotomayor offered a partial dissent of the Supreme Court's decision to keep the law in place while the court deliberates over the two cases.
"By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8's architects intended," Sotomayor wrote.
The court's decision to expedite its involvement was a rare move, brought upon by a law that has garnered national attention because of its extensive limits on abortions and its particular mechanisms of enforcement: not by state officials but by private citizens who are empowered to sue those who may help someone receive an abortion after fetal cardiac activity is detected, before many people know they are pregnant.
"The last time [the Supreme Court] moved this quickly was Bush v. Gore," said Josh Blackman, a law professor at South Texas College of Law Houston whose expertise includes constitutional law.
The court opinion comes after Texas urged the Supreme Court on Thursday to allow SB 8 to stay in effect. U.S. attorneys had asked the Supreme Court to leapfrog the 5th U.S. Circuit Court of Appeals, which is currently overseeing the case, and step in. Texas Attorney General Ken Paxton wrote in Thursday's filing that the federal government lacks standing in the case.
The 5th U.S. Circuit Court of Appeals, one of the most conservative appellate courts in the country, froze an order from a federal district judge that temporarily blocked enforcement of SB 8 earlier this month. U.S. attorneys are now asking for the Supreme Court to undo the 5th Circuit's ruling and allow district court proceedings to continue.
Abortion providers had also asked the high court to fast-track a separate lawsuit. The Supreme Court's Friday decision to hear that case is unique because it hadn't been heard by a federal appellate court yet, Blackman said.
Normally, the Supreme Court considers getting involved in a case only after an appeals court has had a chance to make a decision on it. But abortion providers filed a request called a "certiorari before judgment," a rarely used procedure in which the high court immediately reviews a district court's ruling without waiting on an appellate court to take action.
One of the abortion providers included in the challenge is Whole Woman's Health, a provider with four clinics in Texas. Amy Hagstrom Miller, president and CEO of Whole Woman's Health, said Friday's decision will mean Texans will continue to be denied safe and accessible abortion care.
"The legal limbo is excruciating for both patients and our clinic staff," Miller said in a statement. "Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come."
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Texas bill restricting transgender student athletes’ sports participation heads to Gov. Greg Abbott
18 October
The birth certificate requirement under HB 25 goes further than rules from University Interscholastic League, which governs public school sports in Texas. (Getty Images/The Texas Tribune)
A bill that would restrict transgender student athletes from playing on school sports teams that align with their gender identity is heading to Gov. Greg Abbott's desk after the Texas House accepted Senate amendments to the legislation in a 76-61 vote Sunday afternoon.
The legislation is now primed to become law, after the state Senate voted 19-12 on Friday to pass House Bill 25, authored by state Rep. Valoree Swanson, R-Spring, and the House voted to concur on Sunday. The Senate floor vote followed a swiftly held committee meeting where a 24-hour notice rule was suspended and the Senate's Health and Human Services Committee voted to advance the legislation. Under HB 25, students would only be permitted to compete on sports teams that correspond to the gender listed on their birth certificate that was assigned at or near the time of birth.
Friday's vote is the fifth time this year the Senate has passed legislation targeting transgender youth participation in school sports. Gov. Greg Abbott and Lt. Gov. Dan Patrick have pushed for the legislation during this year's sessions. With HB 25 advancing, Texas joins at least five other states that have passed such legislation.
Critics of the legislation, including transgender advocates, say it unfairly targets transgender children and puts them and cisgender children at risk for being discriminated against.
Getting the bill through the House proved to be a major hurdle for lawmakers this year after legislation faltered in the lower chamber during the regular session and two subsequent special sessions, which included a House quorum break.
The birth certificate requirement under HB 25 goes further than rules from University Interscholastic League, which governs public school sports in Texas. According to UIL rules, gender is determined by a student's birth certificate, though the governing body also accepts birth certificates that were modified to match a student's gender identity. UIL has said the process for checking birth certificates is left up to schools and districts.
HB 25 would disallow acceptance of modified birth certificates by requiring a student's gender to be determined by their original birth certificate unless their original certificate contained a clerical error. However, the process for how a birth certificate will be checked for whether it has been legally modified is unclear.
An amendment was added in the House, but later removed in the Senate, to the legislation that defined "biological sex" as "the physical condition of being male or female as determined by the sex organs, chromosomes, and endogenous profile of the individual at birth." Another House amendment ensures the legislation complies with state and federal laws related to the confidentiality of student medical information.
Swanson has said that the intention of HB 25 is to "protect the right to fair competition in sports" for women and girls and uphold Title IX, a federal law that prohibits education institutions that receive federal funds from discriminating on the basis of sex.
State Sen. Charles Perry, R-Lubbock, who authored similar legislation this special session, said during a news conference in support of HB 25 that passage of the bill had "been a long time coming."
"A lot of times we say bills are transformational. This is actually one that drew the line in the sand: that biological females should stay with biological females and biological males should stay with biological males."
During the House floor debate on HB 25, Democrats said legislators should think about the mental burden such legislation would have on transgender children who already predisposed to bullying and thoughts of suicide.
"This [bill] is not about girls' sports, this is about trying to police people and their behavior and their gender expression," said state Rep. Erin Zwiener, D-Driftwood, secretary of the Texas House LGBTQ Caucus.
Major employers within the state have also signaled their opposition to the law, with about 70 employers and investors signing on to a letter from the coalition Texas Competes, speaking out against restrictive state policies that target LGBTQ people.
In the past year, more than half of transgender and nonbinary youth in the U.S. have seriously considered suicide, and 1 in 5 have attempted suicide, according to The Trevor Project's 2021 National Survey on LGBTQ Youth Mental Health. More than 90% of LGBTQ Youth reported that recent politics have negatively impacted their mental health.
Ricardo Martinez, CEO of Equality Texas, an organization that advocates for LGBTQ Texans, said in a statement that HB 25 tells transgender children "that Texas is not a safe place for them to live."
"Transgender kids, adults, and their families are not political collateral," Martinez said. "They deserve every fundamental right and opportunity that all other Texans have."
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A surgery room at the Whole Woman's Health Surgical Center in San Antonio in 2013. (Jennifer Whitney/The Texas Tribune)
By Reese Oxner
A federal judge temporarily blocked Texas' near-total abortion ban Wednesday as part of a lawsuit the Biden administration launched against the state over its new law that bars abortions as early as six weeks of pregnancy.
But it's unclear how U.S. District Judge Robert Pitman's order may affect access to abortions in the state—or if it will at all. The state of Texas quickly filed a notice of appeal and will almost definitely seek an emergency stay of Pitman's order in the 5th Circuit Court of Appeals, which is known as perhaps the nation's most conservative appellate court.
In a press release, the ACLU of Texas pointed to the uncertainty on how Wednesday's order and the state's appeal will affect procedures in the state.
"Though the court's ruling offers a sigh of relief, the threat of Texas' abortion ban still looms over the state as cases continue to move through the courts. We already know the politicians behind this law will stop at nothing until they've banned abortion entirely," Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project said in a statement. "This fight is far from over, and we're ready to do everything we can to make sure every person can get the abortion care they need regardless of where they live or how much they make."
Until Pitman's order, Texas' new law successfully flouted the constitutional right to have an abortion before fetal viability established by Roe v. Wade in 1973 and subsequent rulings. That's because it leaves enforcement of the new restrictions not to state officials but instead to private citizens filing lawsuits through the civil court system.
The order from Pitman—a 2014 Obama nominee—forbids state court judges and court clerks from accepting lawsuits that the law allows. Pitman ordered the state to publish his order on all "public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts."
He called the case "exceptional" and ordered that the state and "any other persons or entities acting on its behalf" be blocked from enforcing the statute. He acknowledged that his order could be appealed in another court and added: "this Court will not sanction one more day of this offensive deprivation of such an important right."
After Senate Bill 8 went into effect Sept. 1, it forced all major abortion clinics to stop offering abortions after an embryo's cardiac activity is detected, which can happen before many people know they're pregnant. Some providers have stopped offering the procedure altogether out of fear of litigation.
The law is constructed in such a way that people who violate the law, even while it is being temporarily blocked, could be liable to litigation if the law's enforcement were to be reinstated and any existing suits could continue.
It capped conservative lawmakers' decades-long war to block access to the procedure and Texas' fast appeal to the 5th Circuit was expected.
"The court will likely put the trial court judgment on hold," Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said in an email. "Clinics that perform abortions now risk facing liability if the Fifth Circuit stays the ruling."
Planned Parenthood released a statement after Pitman's order but did not say whether its clinics would resume offering abortion procedures.
"While this fight is far from over, we are hopeful that the court's order blocking S.B. 8 will allow Texas abortion providers to resume services as soon as possible. Planned Parenthood providers across the country have reported serving Texas patients, who are heartbroken and furious that they've needed to leave home for essential health care—often at great expense," Alexis McGill Johnson, president of Planned Parenthood Federation of America said in a statement. "Planned Parenthood will continue fighting this ban in court, until we are certain that Texans' ability to access abortion is protected."
Texas Right to Life, a prominent anti-abortion organization, has said that if Pitman's order is reversed, it would consider filing lawsuits against providers or doctors who perform abortions outlawed under SB 8.
"Any abortions that are committed after September 1, 2021—there is a four-year statute of limitations that somebody can retroactively sue for those abortions — so we are going to be vigilant," said Kim Schwartz, the organization's media and communication director.
Schwartz said the organization fully expects the 5th Circuit to step in and reverse Pitman's order. The 5th Circuit has already paused court proceedings in another lawsuit Pitman is overseeing that was lodged by abortion providers over the state's law. The U.S. Supreme Court also eventually could be asked to step in on this case.
Pitman gave a scathing response to Texas' request that the court allow it to seek an appeal prior to blocking the law's enforcement.
"The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right," Pitman wrote in his order. "From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution."
Despite the threat of retroactive lawsuits, the Center for Reproductive Rights said the clinics and doctors it represents "hope to resume full abortion services as soon as they are able." The organization acknowledged that the order is temporary and expected the state would appeal — but called the ruling a "critical first step."
"For 36 days, patients have been living in a state of panic, not knowing where or when they'd be able to get abortion care," Nancy Northup, president & CEO of the Center for Reproductive Rights, said in a statement Wednesday. "The cruelty of this law is endless."
Whole Woman's Health said it was making plans "as soon as possible" to resume abortions outlawed under Texas' law.
"This is AMAZING. It's the justice we have been seeking for weeks," Amy Hagstrom Miller, CEO of Whole Woman's Health, said in a statement.
The Department of Justice sued Texas on Sept. 9 and alleged the law was deliberately constructed to flout constitutional rights by making it difficult to challenge in court. But the state responded that just because the law is difficult to challenge judicially doesn't mean it should be overturned.
By empowering anyone in the nation to file lawsuits against a provider or person who aids someone in getting an abortion and by barring state enforcement, SB 8 makes it difficult to name the correct defendants in the lawsuits that would block enforcement of the law.
The U.S. House passed a reproductive rights bill late last month that would nullify Texas' controversial near-total abortion ban by codifying the right to an abortion into federal law. However, the legislation appears unlikely to pass in the Senate and therefore is unlikely to become law.
"Tonight's ruling is an important step forward toward restoring the constitutional rights of women across the state of Texas," White House Press Secretary Jen Psaki said in a statement. "The fight has only just begun, both in Texas and in many states across this country where women's rights are currently under attack. That's why the President supports codifying Roe v. Wade, why he has directed a whole-of-government response to S.B. 8."
Earlier this year, the Supreme Court decided to not block the law in a late-night 5-4 vote on the day it went into effect. The court cited procedural difficulties and tossed that legal case back to the 5th U.S. Circuit Court of Appeals, where it currently sits. But justices stressed that the court was not ruling on the statute's constitutionality, namely not overruling Roe v. Wade, which helped established a constitutional right to an abortion.
The Department of Justice's case is one of many lawsuits filed in an effort to block the enforcement of Texas' abortion law.
"Today's ruling enjoining the Texas law is a victory for women in Texas and for the rule of law. It is the foremost responsibility of the Department of Justice to defend the Constitution," U.S. Attorney General Merrick B. Garland said in a statement. "We will continue to protect constitutional rights against all who would seek to undermine them."
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Gov. Greg Abbott calls special legislative session for redistricting, other conservative priorities starting Sept. 20
08 September
Gov. Greg Abbott and House Speaker Dade Phelan during a press conference at the state Capitol on June 16, 2021. (Sophie Park/The Texas Tribune)
Gov. Greg Abbott on Tuesday announced a third special legislative session that will begin on Sept. 20 and tackle redistricting, restrictions on transgender student athletes and the ongoing COVID-19 pandemic.
"The Texas Legislature now has the opportunity to redraw legislative and congressional districts in accordance with the new census numbers," Abbott said in a statement. "In addition to redistricting, there are still issues remaining that are critical to building a stronger and brighter future for all Texans."
Lawmakers, who will meet in Austin for the fourth time this year, will also be tasked with allocating $16 billion in federal COVID-19 relief funds and with deciding whether state or local governments can mandate COVID-19 vaccines. Abbott also included on his five-item agenda a bill that would ban the tethering of dogs outside with heavy chains, which he had vetoed earlier this year. Abbott asked lawmakers to address concerns he had about the specificity of the bill and "over-criminalization."
The Legislature just wrapped its second overtime round on Thursday, delivering on major conservative priorities like an elections law that restricts how and when voters cast ballots, a ban on how teachers can talk about race and history in classrooms, billions of dollars in additional border security funding and further restricting abortion access.
But lawmakers failed to deliver on two issues pushed by the GOP base: requiring transgender student athletes to play on teams based on the gender assigned to them at or near birth, and banning COVID-19 mandates.
Abbott had asked lawmakers to ban mask mandates in schools during the second special session but lawmakers could not get that proposal over the hump. Now, Abbott is asking the Legislature to decide whether state or local governments can mandate COVID-19 vaccines.
The bills about transgender student athletes and COVID-19 mandates will likely turn up the heat on an already contentious 30-day session. Lawmakers will take up their decennial redrawing of the state's political maps, meaning some legislators will be fighting for their political lives. (Redistricting usually takes place during the first legislative session after the census, but it was delayed this year because of setbacks spurred by the coronavirus and the Trump administration's handling of the census data.)
After a contentious year in which House Democrats broke quorum three times to avoid legislation they said would restrict the voting rights of Texans, those same lawmakers will now have to work with the Republican majority to redraw the state's legislative and congressional maps. Republicans currently dominate both chambers in the Texas Legislature and the state's congressional delegation, which will grow by two additional seats due to its population increase.
They are expected to draw the maps to continue their political dominance in the state for the next decade.
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