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AUSTIN — The Texas Supreme Court heard oral arguments Thursday on a narrow challenge to the state’s law that created a near-total abortion ban.

The case surrounds whether medical licensing officials have the authority to enforce the state’s Senate Bill 8 passed last year, and in doing so, makes them a target for legal action.

Senate Bill 8, also referred to as the Heartbeat Act, bans abortions in Texas after cardiac activity is detected in a fetus, usually around six weeks of pregnancy, before many women know they are pregnant. It was also designed to evade judicial review by instead deputizing private citizens as the enforcers, allowing them to bring lawsuits seeking damages of up to $10,000 against anyone who “aids or abets” an abortion after a heartbeat is detected.

Additionally, doctors, nurses and other medical professionals are potentially threatened with loss of licensure — managed by the Texas Medical Board and the Texas Board of Nursing — should a medical provider be sued for breaking the law.

Marc Hearron, senior counsel at the Center for Reproductive Rights who argued on behalf of abortion advocates, said allowing medical licensing officials to revoke credentials constitutes an enforcement by a state agency. Therefore, abortion providers can sue licensing officials, allowing pro-choice advocates another avenue to block SB 8.

Conversely, Solicitor General Judd Stone II, arguing on behalf of the state, said the law clearly prohibits enforcement by a state agency or official therefore making the argument moot.

“The legislature has directed that no enforcement of that prohibition may be taken or threatened by the state,” he said. “If a state official revoked a doctor’s license as a consequence of violating SB 8, any ordinary individual would describe that as enforcement.”

Even as Hearron argued that the state licensing boards have enforcement power per its code, Stone said that the justices could rule that the medical licensing officials do not have the power of enforcement regarding SB 8, essentially ending the case for abortion advocates and their last- ditch effort to declare SB 8 unconstitutional.

Hearron admitted that if justices went this route, it would still be beneficial to his clients by providing “certainty” that they wouldn’t lose their license solely for being sued due to an SB 8 violation.

Thursday’s arguments are only the latest step in a string of court proceedings between the state and abortion advocates. The case, formally known as Whole Woman’s Health v. Jackson, continues to circulate through the system making its way up to the US Supreme Court before being returned to the lower courts.

While before SCOTUS in November, justices only answered a procedural question on whether abortion providers can sue judges, court clerks and others in their role as an enforcer of SB 8. The court struck down most of the case, only allowing abortion providers to continue the case against medical licensing officials, and sent the case back to the Fifth US Circuit Court of Appeals.

The court of appeals then diverted the case to the Texas Supreme Court for further state law interpretation before the case goes before the appellate court once again.

Currently, the ban also remains in effect despite several opportunities for courts, including SCOTUS and the Fifth US Circuit Court of Appeals, to place a stay on the law until legal issues are sorted out.

Texas’ SB 8 made national headlines for its unique enforcement structure and stringent timeline on legal abortion access. It will also likely lead to other copycat laws in other states seeking to outlaw abortions, experts say.

However, it is the case currently before SCOTUS—Dobbs v. Jackson Women’s Health Organization — may be the one to overturn the 1973 case Roe v. Wade, which legalized abortion. Should the conservative-leaning court overturn Roe v. Wade, Texas already has a trigger law in place that would ban abortions statewide.

A decision on the Mississippi case will likely come in June, at the end of the SCOTUS term, experts predict.


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