Why Texas State Courts Matter in the Abortion Fight

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Analysis The Politics of Politics

Why Texas State Courts Matter in the Abortion Fight

Imani Gandy

In a post-Roe world, it’s state courts that will determine the rights of pregnant people.

The lawsuits challenging Texas SB 8 aren’t really about abortion. Yes, the bounty hunter law criminalizes abortion at six weeks’ gestation, which is before many people know they’re pregnant. And yes, the law targets abortion providers—along with lawyers, abortion funds, clergy people, and other patient advocates—by turning the public into snitches on the off chance their efforts will garner them a $10,000 bounty. But still. The cases aren’t about abortion.

They’re about civil procedure.

You don’t have to take my word for it. That’s what state District Court Judge David Peeples, a Republican, said in the opening remarks of his order declaring SB 8’s enforcement mechanism unconstitutional. The ruling came in a group of cases being heard in state court in Travis County: Van Stean v. Texas Right to Life, which is actually 13 separate lawsuits consolidated into one; and Planned Parenthood of Greater Texas Surgical Health Services v. Texas Right to Life, which was filed on behalf of a group of Planned Parenthood affiliates.

This flurry of lawsuits occurred right around the time another group of providers and advocates, led by Whole Woman’s Health, filed a lawsuit in federal court against Austin Reeve Jackson and a slew of state officials.

But between the federal and state court cases, only one, Whole Woman’s Health v. Jackson, has dominated the national discourse over the past six months, and it hasn’t been the most successful in terms of protecting what little abortion access remains in Texas. The case has been before the Fifth Circuit Court of Appeals, then up again to the Supreme Court, after which it bounced back and forth between the two appellate courts a couple of times only to land in front of the Texas Supreme Court, which put the final nail in the case’s coffin last week.

Whole Woman’s Health v. Jackson was a Hail Mary from the outset. Advocates had a difficult time figuring out who they could sue for relief. Normally, they would have sued a government official. But SB 8 prohibits that. Rather than having state officials enforce the law as is customary, Texas Republicans deputized literally everyone in the world to help them stick it to pregnant people. If you’ve provided an abortion (or “aided or abetted” in the provision of an abortion, whatever that means), you could be on the hook for thousands of dollars in defense costs and, potentially, $10,000 or more in damages to the person who snitched on you.

Advocates and providers challenging SB 8 in federal court have watched as the Fifth Circuit, in concert with the U.S. Supreme Court, ghosted Roe v. Wade. And it has been astonishing: Here we have a blatantly unconstitutional law infringing upon a constitutional right that six of the nine justices on the highest court of the land have decided doesn’t matter simply because they don’t like it. The Supreme Court should have blocked the law and didn’t. The Fifth Circuit should have permitted the lower court’s order—U.S. District Court Judge Robert Pitman’s thorough order—to remain in effect. But that’s not what happened. And it’s infuriating.

And so it’s understandable that the fecklessness of the federal judiciary has sucked all the air out of the room. But it’s led to the development of some unfortunate narratives about the state of abortion access in Texas.

“Abortion is functionally illegal in Texas, and there’s nothing to be done about it.”

That’s the mainstream narrative. And I confess that I have fallen prey to that framing.

The situation in Texas is not hopeless

But it’s not true that there’s nothing to be done about the ongoing human rights crisis in Texas, and it does a disservice to the providers and patient advocates who are fighting in state court, trying to beat back the mercenary society grounded in reproductive tyranny that attorney Jonathan Mitchell, the architect of SB 8, as well as Texas Right to Life and its legislative director, John Seago, have built in Texas.

The “it’s hopeless!” narrative also does a disservice to patients inundated with messages about the lack of access in Texas, with little focus on what pockets of access remain.

Creating a sense of panic can be useful to engender a sense of urgency regarding flagging abortion rights in this country. It can be useful to create inflection points of activism.

But real people are affected by this law, by and large people of color and low-income people. And these people need abortion care, not a national messaging strategy that paints Texas as an abortion wasteland that the rest of the country should just ignore.

I spoke with Dr. Ghazaleh Moayedi, one of the plaintiffs in the Van Stean case, and she was adamant that the narrative is false: “Abortions are still going on in Texas,” she told me in a phone interview. “And that there’s nothing to be done about it is actually one legal perspective. … There are other legal perspectives that are like, ‘We should just do things about it.’”

“Yes, abortions have stopped in this huge capacity, and this law is really fucking terrible,” Moayedi added. “And also, we haven’t necessarily exhausted every way of pushing back. And we haven’t been able to actually have conversations more broadly about that, really.”

That’s because there’s not enough attention being paid to efforts challenging SB 8 in state court under Texas law, and almost no attention being paid to the political implications if the enforcement mechanism is allowed to stand.

Instead, the sort of sustained interest and attention demanded by the ongoing crisis in Texas has devolved, as it often does, to the false narrative that casts the state as “flyover country.” That false narrative is reinforced by nihilistic views about abortion access in Texas.

“We’re winning it on Texas civil procedural grounds”

Jenny Ecklund and Elizabeth Myers represent plaintiffs in the 13 lawsuits that comprise the Van Stean case. Their strategy, which has played out in a state court in Travis County, where the progressive city of Austin sits, has garnered far less attention than the federal lawsuit, Whole Woman’s Health v. Jackson, which was originally filed in the U.S. District Court for the Western District of Texas, less than a mile away.

Photo of pro-choice activists holding a large sign that reads repro freedom for all outside the U.S. Supreme Court

Drew Angerer/Getty Images

“We were really concerned in Texas—and our clients were really concerned—that given the way SB 8 was drafted, there wasn’t going to be an easy way to get relief from the U.S. Supreme Court because it was drafted to evade federal jurisdiction,” Myers told me in a phone interview.

So Ecklund and Myers tailored their challenge to the overwhelming Republican body they would have to convince to block SB 8: the Texas Supreme Court.

“We recognize that because we were challenging the procedural mechanisms, we were going to have to focus on those issues and that the importance of the rule of law—and guaranteeing equal protection by the courts—is something we think all judges would be interested in,” Myers said.

Although Ecklund and Myers have yet to appear before the Texas Supreme Court, their success during the course of the Van Stean case thus far makes their confident predictions of success once the case reaches the state’s highest court entirely believable.

Ecklund and Meyer’s clients stipulated to an agreement under which the defendants in the case—Texas Right to Life, Jonathan Mitchell (architect of SB 8 and one of TRL’s attorneys), and John Seago (TRL’s legislative director)—agreed not to file any lawsuits against their clients while they fought it out in court. That freed up Moayedi, whose risk assessment fell on the side of “gonna keep providing abortions,” to keep providing abortions. And it presumably gave the abortion funds a bit of peace of mind, knowing that the main player when it comes to enforcement of SB 8 had agreed to leave them alone.

With this temporary agreement in place, Ecklund and Myers set about convincing Peeples of the enforcement regime’s unconstitutionality under Texas law.

A persistent problem remains: Even a final judgment in a state case won’t provide comprehensive relief. The relief will run only to the specific defendants in the case, and their agents and attorneys.

It’s this sort of detail that can mean the difference between a case capturing the national imagination—or not.

Everyone’s heard of Roe v. Wade, and therefore the outrage over the Supreme Court refusing to uphold its own precedent is understandable.

But who’s heard of the Texas Citizens Participation Act? Or the Texas Constitution’s open courts provision? I hadn’t, and I’m a lawyer. People cannot be expected to know the ins and outs of a state’s civil litigation process.

Still, these are the state-level statutory procedures governing litigation that will ultimately decide the outcome of the state cases.

Paying attention to state courts

Julie Murray, a senior staff attorney at Planned Parenthood Federation of America, was part of the legal team in Whole Woman’s Health v. Jackson, which challenged SB 8 in federal court on behalf of a group of Planned Parenthood affiliates. She’s also part of the legal team challenging SB 8 in state court, where they’re arguing that both the law’s bounty hunter provision and its underlying abortion ban are unconstitutional under the Texas Constitution.

Same attorneys. Different lawsuits. And still, Whole Woman’s Health is the only case that garners interest from the mainstream media, not the state court challenges.

Murray sees this as a result of the breadth of the remedy sought in Whole Woman’s Health compared with that of the state case she is also litigating.

“The federal court case could have provided comprehensive relief in a preliminary-injunction posture. Had it done so, we could have avoided the six-month interruption of services that we’ve had already,” Murray said by phone. “So I think the outrage about what the U.S. Supreme Court did, and what that means for people’s reproductive autonomy in Texas and around the country, was appropriate.”

She recognizes, however, that more attention should be paid to state court litigation.

“The availability of state court remedies and recognition of a state right to abortion may, at least in the short term, provide the key to restoring full access to abortion in Texas,” Murray said.

That’s why more focused and sustained interest in the state-level fights is critical.

Lawyers for providers and patient advocates in state court have made it clear that Texas’ arguments defending the law—and, indeed, the law itself—are disrespectful.

By attacking the penalty portion of Texas SB 8, lawyers in state court have removed Texas Right to Life and associates’ power to enforce the law, or even threaten to enforce the law, against their clients to dissuade them from providing care and assistance to providers and patients. This may not seem like much; after all, there are an infinite number of people who could become abortion snitches, and it’s not possible to name them all in a lawsuit. Still, it’s not nothing.

Lawyers for providers and patient advocates in state court have made it clear that Texas’ arguments defending the law—and, indeed, the law itself—are disrespectful.

That’s because Mitchell and Solicitor General Judd Stone II have approached this litigation with a level of smugness best described as ill-advised. It takes a fair lack of self-awareness to argue before state court judges that nothing they do matters, as Stone has.

Indeed, “it doesn’t matter what courts do” is at the core of Mitchell’s legal philosophy: The so-called writ of erasure fallacy, about which he has written extensively, posits that it is a mistake to assume a court decision striking down a law actually cancels or revokes that law. In other words, just because a court, which is empowered to review legislative acts, declares a law to be unconstitutional, that doesn’t mean the law can’t be enforced in some other way.

Private enforcement of civil statutes of the kind seen in SB 8 is that “other way.”

And it’s not likely that Mitchell plans to stop with SB 8.

SB 8 creates a massive surveillance state

Imagine a world where neighbors snitch on each other and keep track of whether their neighbors get their kids gender-affirming care. Imagine the mass surveillance state that people in this country will willingly erect in the name of ferreting out gay and trans people, or people who engage in behavior that right-wing Christian evangelicals believe is sinful.

Moayedi doesn’t have to imagine it. She’s flat-out warning people about it. She says the bounty hunter provision is going to become more prevalent.

“It’s going to be and is being used on gender-affirming therapy for kids,” she said, referring to SB 8’s enforcement mechanism. “It is going to keep creeping into these areas of daily life here, [and] that is horrible for all of us.”

“These sorts of laws can’t remain in place in this way in our state at all. It can’t be a precedent at all. We have to fight it on the state level, even if the federal case wins. Because this can’t be the case that laws are made like this.”

As copycat SB 8 legislation flourishes in other states, it’s clear Moayedi is right about it creeping into areas of daily life. One only has to dig into Mitchell’s history to understand his intentions.

Mitchell wants the U.S. Supreme Court to end not just abortion rights, but also the rights to gay sex and same-sex marriage. In a brief Mitchell and co-author Adam Mortara filed with the Supreme Court in Dobbs v. Jackson Women’s Health Organization, Mississippi’s direct challenge to Roe, they argue that Lawrence v. Texas, the 2003 ruling that decriminalized sodomy, and Obergefell v. Hodges, the 2015 case that legalized same-sex marriage, are as lawless as Roe.

­­­It’s easy to imagine that SB 8 is a trial balloon for legislation that outsources the culture war to citizens deputized by states hostile to the civil and human rights of LGBTQ people, pregnant people, low-income people, people of color, or people with any intersection of these identities.

The surveillance apparatus that Mitchell has set up in Texas could just as easily be used to peer into people’s bedrooms to determine whether they’re having gay sex, or whether the parent of a transgender kid is committing child abuse by providing them with gender-affirming care.

Once we start snitching on each other, it’s going to be impossible to stop. Particularly given the allure of a $10,000 or more bounty at a time when many people are financially struggling. That’s why it’s critical to stop SB 8’s enforcement mechanism dead in its tracks.

Mitchell’s own philosophy posits that courts are powerless to do anything in the face of unconstitutional legislation. His argument for the writ of erasure fallacy proves that.

And that’s not an argument state court judges will take too kindly to, particularly if the Texas electorate becomes more intentional with respect to voting in local elections. State court judges are persuadable in a way that federal appellate court judges do not seem to be.

The state court fight to protect access

“There’s a lot of public education to be done on what … the post-Roe world look[s] like,” Murray, the Planned Parenthood attorney, said.

She’s right. For years, the federal courts have acted as a bulwark against the worst impulses of states opposed to abortion.

But the federal challenge to SB 8’s abortion ban is officially dead. And most abortion rights advocates and enthusiasts expect a ruling in Dobbs v. Jackson Women’s Health Organization that reverses Roe. It’s just not clear what form that reversal will take.

So even though the federal lawsuit has been smothered to death by Texas’ wholesale rewriting of its rules of civil procedure as applied only to abortion litigation, the still-ongoing state court lawsuits present an alternative source of relief for some of the providers and other patient advocates targeted by SB 8. At least initially, that relief would be limited, since the only people constrained by a trial court judgment would be the specific defendants, but a judgment forbidding them from suing some of these providers is a good thing. And a decision by the Texas Supreme Court affirming that judgment could set a precedent that SB 8 could not be enforced by anyone anywhere in the state.

But it’s not enough.

Ultimately, to protect abortion access, state court judges need to find a right to abortion in state constitutions.

A state supreme court finding a right to abortion in that state’s constitution may seem impossible, but it’s not, particularly in states like Texas where state judges are elected rather than appointed. (After all, Kansas did it in 2019!)

That puts a lot of power in the hands of Texas voters (likely another reason Republicans are hell-bent on voter suppression in Texas). Just this week, in fact, state court judges issued an order blocking Texas officials from investigating families of trans kids to determine whether they’re providing gender-affirming health care. Also, there are district attorneys in counties across the state that are refusing to attack trans kids as ordered by Gov. Greg Abbott.

Shining a light on local legal fights underscores the importance of state elections.

Meanwhile, it becomes the responsibility of providers to decide for themselves whether to provide care. And while that’s a risk assessment personal to each provider, each provider’s decision can impact another’s.

Some providers, like Moayedi, have opted to continue providing abortion care.

“We could just start doing the abortions and let them start suing,” she said.

Others have opted to discontinue service, unwilling to take that risk. Providers and patient advocates across the state are frustrated at the lack of access, and it’s not going to get any better unless reproductive justice enthusiasts in Texas become more intentional in the use of their resources and energy.

Inflection points around Roe will soon be a thing of the past. But new inflection points can be created. Focusing on the statewide election of judges could prove a more powerful inflection point in Texas—and in other states where judges are elected—than any Women’s March or national messaging tool kit.

The state-level lawsuits aren’t sexy. But they’re important. They highlight the ways in which Republicans in Texas are willing to rip apart the very fabric of the Texas judiciary. And they involve complex and likely boring (to anyone who doesn’t nerd out on civil procedure) concepts.

It’s understandable, then, that the national cases have garnered the most attention. And it’s understandable that people are inclined to tap out when it comes to tracking the goings-on in local courts.

But it’s crucial for anyone who cares about abortion rights to keep an eye on state court proceedings.

Because in a post-Roe world, it’s state courts that will determine the rights of pregnant people. And that’s something Texans can do something about.