Abortion rights activists are shown rallying outside the U.S. Supreme Court in 2019. Credit: REUTERS/Kevin Lamarque

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Texas abortion providers have asked the U.S. Supreme Court to take up their challenge to the state’s law that nearly bans abortion on an expedited basis without waiting for an appellate court to make a decision.

The providers made the request more than three weeks after the court refused to block the law on a 5-4 vote, citing procedural difficulties but emphasizing that it was not ruling whether the statute is constitutional. In a request filed Thursday, providers and other abortion rights organizations asked the court to grant a petition for a “certiorari before judgment,” a rarely used procedure where the high court would immediately review the decision of a district court without an appeal having been decided by a federal appellate court.

The Supreme Court may decline to grant this request. Under court rules, the method can be used “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

Attorneys for the providers asked the court to immediately review the core issue of the case — whether a state can prevent federal court review of a law that blocks constitutional rights by delegating enforcement to the general public through lawsuits.

The new law went into effect on Sept. 1 and has forced clinics to stop offering procedures after approximately six weeks of pregnancy.

“The Texas Legislature has openly defied federal law and has done so in a way purposely designed not only to deprive Texans of their constitutional right to abortion but also to forestall federal judicial protection of that right,” the filing stated.

John Seago, legislative director for the prominent anti-abortion group Texas Right to Life, called Thursday’s filing a “last-minute Hail Mary.”

“This new filing of the Supreme Court does not seem to be a reasonable legal tactic,” Seago said. “This is just another development in the abortion industry’s desperate actions to try to stop this bill from saving lives.”

The new law, originally known as Senate Bill 8, is being challenged in other high-profile cases as well. The U.S. Justice Department sued the state of Texas on Sept. 9 in an effort to block its enforcement. A hearing in that case will be held Oct. 1. Meanwhile, another effort from the abortion providers sits in 5th U.S. Circuit Court of Appeals — considered one of the nation’s most conservative appeals courts. According to Thursday’s filing, the appeals court will not hold arguments earlier than December.

Seago said he believes the Oct. 1 hearing for the Justice Department lawsuit “is the most credible threat at this point” to the abortion law.

In its initial decision related to the state’s abortion law, the Supreme Court this month emphasized that the law could continue to be debated in state courts. At least two lawsuits were filed against a Texas doctor who performed an abortion prohibited by the new law, and those cases could be escalated to higher courts and test the statute. But the providers say that would take too long.

“The few cases pending in state court could take months, if not years, to wend through the state-court system before they could provide statewide relief,” providers wrote in Thursday’s filing. “And if someone sued under S.B. 8 prevails and the claimant chooses not to appeal, peti­tioners will have no opportunity to receive a statewide ruling.”

Under the law, anyone in the U.S. can file a lawsuit against someone who aids a person getting an abortion and, if they win, are entitled to at least $10,000 plus their legal fees from the party they sued.

Fearful of lawsuits causing financial ruin, all major Texas abortion clinics came into compliance with the law by the time it came into effect. Experts estimate the law makes more than 85% of the abortions that normally occur in the state illegal.

“Faced with the threat of unlimited lawsuits from the general popu­lace and the prospect of ruinous liability if they violate the ban, abortion providers have been forced to com­ply,” the providers wrote. “Texans with means must now travel hundreds of miles each way to other states during a pandemic, just to exercise a clearly established federal right.”

The law has been able to skirt the precedents set by Roe v. Wade and subsequent court rulings because of the novel way it was written. The statute bars state and law officials from enforcing it, instead relying on private citizens to uphold the restrictions in court. This makes it hard to challenge in court, because courts typically can block the enforcement of a law only by issuing injunctions against certain parties. Because anyone can file a lawsuit, it’s difficult to name the right defendant.

In both petitions to the Supreme Court, abortion providers named every state trial court judge and county court clerk in Texas as defendants, among a few others, in an attempt to block enforcement.

In their initial plea to the Supreme Court, providers asked for the law to be blocked before it came into effect on Sept. 1. The five justices in the majority vote pointed to the fact that enforcement hadn’t begun as a barrier to blocking it. Now that the law is in effect, the providers are urging the court to take action.

“The gravity of the circumstances and the para­mount importance of the question presented warrant this court’s intervention,” the providers wrote. “The court should act now to resolve the question pre­sented on an expedited basis, with the benefit of briefing and argument that was impossible when pe­titioners filed their emergency application.”

Attorneys for the lawsuit pointed to copycat laws being discussed in other states, including in Florida where a similar bill has already been introduced. They argued that the same mechanism allowing Texas to skirt constitutional rights could be employed to violate other rights as well.

“Today, it is abortion providers and those who assist them who are targeted. Tomorrow, it might be gun buyers who face private, civil liability for firearm purchases. Same-sex couples could be sued by neighbors for trying to obtain a marriage license,” the providers warned. “States could give citizens a right to sue any newspaper that criticized the incumbent government. Unpopular political groups could be barred from gathering under threat of vigilante lawsuits. The possibilities are limitless.”

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