With Justice Kennedy’s retirement announcement, both sides in the abortion debate rightly recognize that this could be the beginning of the end for Roe v. Wade. President Trump’s nomination of Judge Brett Kavanaugh has sparked significant excitement and anticipation from Pro-Lifers across the country. Because he is clearly a strict constructionist, Texas Right to Life is cautiously optimistic that Kavanaugh’s addition to the court will secure enough votes to overturn or effectively gut the unethical and wrongly-decided landmark decision Roe v. Wade that created a “right” to abortion on demand not found in the text of the Constitution.
However, many variables other than the new Justice still exist in the calculation of whether a new high court might overturn Roe. Key to discerning the disposition of the new court will be to pay close attention to Pro-Life law cases already working their way to the Supreme Court, including four lawsuits emerging from Texas. Below find a summary and status of the four cases originating from Texas currently winding their way through federal court.
1. Whole Woman’s Health v. Paxton: Challenging the Dismemberment Abortion Ban
By far the most important and promising lawsuit for Pro-Lifers is a challenge to Texas’ Dismemberment Abortion Ban. In May of 2017, the Texas Legislature passed Senate Bill 8, which included an amendment to ban the barbaric abortion procedure that takes the life of a child by ripping him or her apart limb-by-limb while his or her heart is still beating. Texas Right to Life made this policy the top Pro-Life priority in 2017 because the policy and the surrounding cultural conversations expose irrefutable truths about abortion that our culture must face. The Legislative debates and the five-day trial in district court about the policy shed light on the humanity of the preborn child who suffers, excruciatingly, during the inhumane dismemberment procedure.
After the abortion lobby argued against the policy during the trial in early November of 2017, Judge Lee Yeakel ruled the ban on this inhumane procedure to be unconstitutional and an undue burden on a woman seeking an abortion. Attorney General Ken Paxton’s legal team appealed this ruling to the United States Fifth Circuit Court of Appeals, which has not yet set a date for trial. Although Texas Right to Life expects a fair ruling on the Pro-Life policy in the circuit court, most experts fully anticipate this case being expedited to the Supreme Court in the next term. In order to determine the next strategic step in successfully challenging Roe V. Wade, the Pro-Life movement must watch this case carefully, ensuring that we do not fumble this historic opportunity.
2. Whole Woman’s Health Alliance v. Paxton: Abortion Industry’s Shotgun Approach
The most recent and audacious litigation from the abortion industry was a recent suit that Whole Woman’s Health Alliance (WWHA), an organization of multiple abortion clinics, filed against more than 20 of Texas’ Pro-Life laws. In June 2018, the abortion business alleged in court that although individual laws may not present an undue burden, the combined effect of the laws together results in a undue burden and is thus unconstitutional. This new “shotgun approach” was inspired by the 2016 mind-boggling ruling in Hellerstedt vs. Whole Woman’s Health in which activists on the Supreme Court (enabled by Justice Kennedy’s swing vote) ignored the Court’s previously established rules and opted instead to simply decree a possible new standard in scrutinizing state restrictions on abortion.
Interestingly, the strategy has been explained as an effort to secure precedent on this before the makeup of the court changes and similar “novel” lawsuits have been filed in multiple other states. No trial date has been set and Texas Right to Life will be closely watching to see if anything changes in the case due to the turnover at the Supreme Court.
3. Whole Woman’s Health v. Smith: Challenging Texas’ Fetal Burial Rules
In 2016, the Texas Department of State Health Services (DSHS) published agency rules requiring humane burial or cremation of the bodies of children killed by abortions. Previous policy had treated the remains of those children as medical waste and allowed them to be disposed in sewer systems. Whole Woman’s Health, an abortion business, convinced Judge Sam Sparks to block enforcement, stating that the rules were vague and presented an undue burden. Then in May of 2017, the Texas Legislature passed Senate Bill 8 which codified the fetal burial provisions (in addition to banning dismemberment abortions as discussed above).
The lawsuit was amended to also challenge these provisions of SB 8, which were subsequently enjoined in January 2018. The lawsuit was transferred to US District Court Judge David Ezra who has scheduled the case for a trial on July 16 to hear oral arguments over the constitutionality of the fetal burial provisions of SB 8.
4. Planned Parenthood v. Smith: Protecting Planned Parenthood as a Qualified Medicaid Provider
Following the release of the appalling undercover videos by the Center for Medical Progress (CMP) showing Planned Parenthood employees colluding to profit off the sale of the bodies of abortion victims, Texas sent notice to Planned Parenthood of the state’s intent to terminate the Medicaid contract of Planned Parenthood. In addition to the blatant disregard for the laws governing fetal tissue donation, the notice sent to Planned Parenthood cited numerous instances of Planned Parenthood defrauding Texas of millions of taxpayer dollars. The State of Texas has and defends the legal authority to terminate contracts with Medicaid providers who have disqualified themselves by breaking state and federal program guidelines.
Judge Sam Sparks placed an injunction on the State’s action which blocked the termination of Planned Parenthood’s Medicaid contract, an action the State eventually appealed to the Fifth Circuit. In June, a three judge panel heard the appeal, asking pointed questions about why the district court would intervene in a contracting issue between the State of Texas and a Medicaid Provider. The Fifth Circuit has yet to release a ruling on the appeal.
Stay tuned to TexasRightToLife.com for updates on how these cases play out, and what that will mean for abortion jurisprudence in the future. We have long worked toward an end to abortion and pray this news represents the beginning of that end.