The U.S. Supreme Court left abortion providers only the narrowest avenue to challenge the ban on abortions after about six weeks of pregnancy. Friday’s Texas Supreme Court ruling has effectively ended that federal legal challenge.
The Texas Supreme Court on Jan. 15, 2020 Credit: Miguel Gutierrez Jr./The Texas Tribune
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The Texas Supreme Court dealt a final blow to abortion providers’ federal challenge to the state’s latest abortion restrictions Friday.
The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.
The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.
The law is designed to evade judicial review, a goal at which it has been largely successful so far. Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.
The U.S. Supreme Court disagreed with all of those arguments but one, allowing a challenge against the medical licensing officials to proceed. That case then went back to the 5th U.S. Circuit Court of Appeals, which sent it to the Texas Supreme Court to weigh in on.
In a hearing last month, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”
On Friday, the justices issued a ruling that seemed to agree with Stone’s “ordinary English interpretation” of the law.
“The Court concluded that Texas law does not authorize the state-agency executives to enforce the Act’s requirements, either directly or indirectly,” they wrote.
Abortion advocates, including those who brought this challenge, were unhappy with the ruling.
“We have been fighting this ban for six long months, but the courts have failed us,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. “The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans. Where will Texans go then?”
Nancy Northup, president and CEO of the Center for Reproductive Rights, also issued a statement. “The courts have allowed Texas to nullify a constitutional right,” she said. “We will continue to do everything in our power to right this wrong.”
Meanwhile, anti-abortion groups cheered the court’s decision.
“The court recognized what we already knew: this law is constitutional,” said Chelsey Youman, state director and national legislative advisor with Human Coalition Action, in a statement. “It is the most successful piece of pro-life legislation in 50 years and should be replicated everywhere in states that are serious about rescuing pre-born lives.”
The Idaho House of Representatives on Tuesday passed legislation to make it a crime punishable by life in prison for a parent to seek out gender-affirming health care for their transgender child.
The bill is among 29 pieces of Republican-backed legislation nationwide proposed so far this year to curtail health care for transgender youth, and it coincides with dozens of additional bills seeking to limit what can be discussed about gender identity and sexual orientation in schools and restrict transgender athletes in school sports.
But LGBTQ advocates and legal experts say the Idaho proposal differs by criminalizing cases of transgender children traveling to other states to obtain certain medical procedures.
“We are seeing the severity of those policies start to really ramp up,” said Sam Ames, director of advocacy and government affairs at The Trevor Project, a nonprofit organization that focuses on preventing suicide in the LGBTQ population.
A directive by Texas Gov. Greg Abbott last month ordered child welfare authorities to “conduct a prompt and thorough investigation” of any reported instances of minors undergoing “elective procedures for gender transitioning” as potential child abuse. Multiple investigations are now underway into Texas families with transgender children, with the threat of decades in prison for anyone convicted of child abuse.
In Idaho, HB 675 would amend the state’s statute prohibiting genital mutilation to make it a felony to provide gender-affirming health care, such as puberty blockers, hormone therapy and sex reassignment surgeries. But the bill goes further than other GOP efforts targeting transgender health care: A parent or guardian would also be guilty of a felony if they travel with their child to another state for the purpose of obtaining gender-affirming health care. Those found guilty could face up to life imprisonment. Idaho Rep. Bruce Skaug, the Republican sponsor of the bill, said Tuesday on the floor of the Legislature that his proposal is necessary because minors are too young to make life-altering decisions about their bodies. He also cited the Texas government’s recent move to consider gender-affirming medical treatments a form of child abuse as evidence that Idaho should act as well.
“If we do not allow minors to get tattoos, smoke cigarettes and drink alcohol or sign legal contracts,” he said, “why would we allow them to make decisions to cut away organs based on their feelings during puberty time?”
Skaug did not respond to requests for comment.
The bill cleared the Idaho House by a vote of 55-13 on Tuesday. It now heads to the Idaho Senate, where Republicans hold a 28-to-7 majority over Democrats.
Four experts who reviewed the legislation told NBC News that the Idaho proposal could be vulnerable to legal challenges. It is not unlike laws from a prior generation, including the criminalization of interracial couples traveling to another state to get married, the experts said, which was struck down by the U.S. Supreme Court. People already take trips to other states to do things that are legal that they can’t do where they live — from consuming cannabis, gambling or buying fireworks to obtaining an abortion — and there’s little states can do to stop that because of constitutional limits on restricting interstate travel.
The bill presents “complicated questions whether Idaho could, in that fashion, use their lawmaking authority to try to prevent people in Idaho from taking advantage of the differing law of another state,” said David B. Cruz, a law professor at the University of Southern California.
Andrew Koppelman, a Northwestern University law professor, said a fatal flaw of the legislation is another section that stipulates only males can receive testosterone from a doctor. That would violate federal prohibitions on gender-based discrimination, he said.
“The constitutionality of this bill is in doubt, even aside from the provision that says that you can’t travel out of state,” Koppelman said.
Last year, Arkansas became the first state to enact a law prohibiting gender-affirming medical care for trans youth, according to the American Civil Liberties Union. A federal court blocked the law from taking effect, in response to an ACLU-backed lawsuit, but 19 other states introduced similar legislation.
Anti-LGBTQ legislation has been increasing at the state level in recent years, with 17 bills signed into law in 2021, more than the previous three years combined, according to the Human Rights Campaign.
In a recent survey by The Trevor Project, 85 percent of trans and nonbinary youth said debates about state laws restricting the rights of transgender people negatively impacted their mental health.
“This national political assault is not really about trans youth,” Ames, of the Trevor Project, said. “It’s very clear that this has become a useful political wedge issue in a hotly contested political climate. The fact that we are playing politics with young people’s lives like this is an indication to me that we are dealing with the worst kind of politics we know in this country, which is the kind that assumes an acceptable risk of casualties.”
I have already posted that Republican strategist feel the trans issue and LGBTQ+ books in schools is the winning ticket for the midterms. They know it riles up the base, it is an easy sell to their base, it is a message the can hammer on and distort. Notice the language used in the bills, “why would we allow them to make decisions to cut away organs based on their feelings during puberty time”. Notice the cut away organs … Kids having irreversible sex changes oh my gods save the children. Except it is not happening. No more than there was a child rape ring in the basement of a pizza shop run by Hillary Clinton. It is made up to scare people. Kids get social transitioning such as the support wearing the other genders specific clothing, using the items that gender uses, allowed name and pronoun change, and with the assistance of trained medical professionals who examine the child to determine the appropriateness of treatment kids can get puberty blockers. And that is not a harmful permanent procedure and is recommended by the American Academy of Pediatrics. The majority of the medical community says that not only are puberty blockers not harmful and fully reversable they save lives and give trans kids lifelong relief from developing the traits of the gender they do Identify as so do not want to live as. This is an especially important issue that has lifelong consequences of how a person presents all their life. Imagine if you had to live your life looking like the gender you are not? Imagine you are a woman who had to go through male puberty and are built like a linebacker now? Imagine you are a man who had to go through female puberty and look like a pretty show girl. have some compassion people. But let me be clear again, no child gets a sex change operation, gets any operation for gender change done on them. They have to be 18 and in some places even 21 to have that control over the bodies. So this is a political issue like CRT made up to show the people the woke lib Democrats want to destroy gods creations and hurt white people and their kids.
The Idaho House of Representatives has passed legislation to make it a crime punishable by life in prison for a parent to seek out gender-affirming health care for their transgender child. https://t.co/6qLKSUDGQS
Advocates are sounding the alarm about two anti-LGBTQ+ bills in Idaho that come with hefty punishments—including a potential life sentence. @cohaug reports: https://t.co/kAyMzb9flF
The Florida Senate approved legislation on Thursday that limits how workplaces and schools teach about race and identity. The measure prohibits trainings that cause someone to feel guilty or ashamed about the past collective actions of their race or sex, and its passage clears the way for Gov. Ron DeSantis to sign one of his top legislative priorities into law.
After two days of emotional debate on a proposal that remains clouded by considerable confusion, the Senate passed the framework for the so-called “Stop Woke Act” 24 to 15, in a party-line vote.
DeSantis initially proposed the bill in December, arguing he wanted Florida to become a bulwark against corporate trainings and school lessons that make people uncomfortable about the actions of their ancestors.
It's really called the "Stop Woke Act." Shoulda went for something more catchy, like the "Ambien Act" or the "White Fragility Act" https://t.co/8jIizoJirX
Just now – Florida Senators pass the bill called “Individual Freedom” – what the Gov calls “Stop WOKE act”: 24-15 – party lines. It essentially blocks schools & businesses from teaching race/ethnic history & diversity in a way that makes someone feel shamed, guilty@WPLGLocal10
BREAKING: The Florida Senate just passed the so-called "Stop WOKE Act” bill, which censors conversations about racism, LGBTQ+ issues and discrimination.
This comes days after Florida passed its “Don’t Say Gay or Trans” bill. https://t.co/Q8ZxxdnAIz
Texas is worried it could lose over a billion dollars in federal funding over Gov. Greg Abbott’s directive requiring medical professionals to report gender-affirming care for minors as child abuse.
Attorney General Ken Paxton. Credit: USA TODAY NETWORK via Reuters
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Texas is worried it could lose over a billion dollars in federal funding over Gov. Greg Abbott’s directive requiring medical professionals to report transgender children receiving gender-affirming health care as potential child abuse.
Texas Attorney General Ken Paxton amended an existing lawsuit suing the Biden administration Wednesday, attempting to void guidance issued by the U.S. Health and Human Services on March 2 that said restricting someone’s ability to receive medical care solely on the basis of their sex assigned at birth or gender identity is likely a violation of the Affordable Care Act for federally funded entities. That federal guidance came in response to Abbott’s directive issued late last month to treat certain medical treatments for trans children as possible crimes to be investigated by the Department of Family and Protective Services.
The federal guidance stated that health care providers do not need to disclose private patient information regarding gender-affirming care and that it is illegal to deny health care based on gender identity.
Paxton, in the lawsuit, said that guidance is based on “erroneous interpretation of sex discrimination.” The lawsuit says Texas does not aim to deny health care based on gender identity. Instead, the state argues its investigations disregard gender entirely, barring all children from “unnecessary medical interventions.”
In 2020, $1.36 billion in federal funds went to Texas’ Department of State Health Services, Paxton said in the lawsuit. More than $26 billion went to the State’s Health and Human Services Commission.
Before Abbott issued his directive essentially equating gender-affirming care to child abuse, Paxton issued a nonbinding legal opinion stating that health care treatments such as puberty blockers, prescription medicines whose effects are entirely reversible, constitute child abuse as well. These statements elicited intense criticism from the White House, doctors, lawmakers and advocacy organizations.
So far, the state has begun five investigations into parents of trans children since Abbott issued his directive Feb. 22. However, there may be more cases as the state declined to disclose active investigations amid pending litigation.
Paxton attempted to stop a ruling temporarily blocking the state from investigating the family of a trans child. But a Texas appeal court denied him Wednesday. On Friday, lawyers for the American Civil Liberties Union and Lambda Legal will ask a lower court judge to stop state investigations against parents who obtain gender-reaffirming care for their children.
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