Texas Anti-Abortion Bill Includes Provision Barring State Review of Its Legality

Texas’s State Senate has passed an anti-abortion bill that seeks to punish anyone who distributes abortion medication with huge fines — and it includes a provision forbidding any state court from reviewing its constitutionality.

Senate Bill 2880 allows anyone in the state to sue someone “who manufactures, distributes, mails, prescribes, or provides an abortion-inducing drug.” Those who are found to have violated the proposed statute can face up to $100,000 in penalties.

The legislation also amends the state’s so-called “wrongful death” statute relating to abortion, expanding the ability to sue someone for up to six years after an abortion takes place.

While it can be challenged in federal court, the bill includes a clause that forbids any state court from reviewing its legality, essentially stripping away a constitutional check from the judiciary.

Republican State Sen. Bryan Hughes, who authored the bill, believes that the legislature has the power to pass such provisions, recently arguing on the Senate floor that lawmakers can determine where and the manner in which statutes can be challenged.

“We make the rules. We set the jurisdiction,” Hughes said.

Indeed, a quirk in the state constitution allows the Texas Supreme Court (and lower appellate courts) to rule on “all cases except in criminal law matters and as otherwise provided in this Constitution or by law.”

But legal experts still believe that this attempt to limit review of the bill, if it indeed becomes law, is a drastic overreach.

“This is absolutely unprecedented, what they’re trying to do here,” said Joanna Grossman, a law professor at Southern Methodist University, speaking to The Texas Tribune. “I haven’t reviewed every law in Texas, but I think it’s safe to say this has never been tried.”

Dallas attorney Charles Siegel agreed, saying he had “never seen anything like that in any statute of any kind, anywhere.”

“It’s just frightening as hell that anybody, any elected representative, would put these provisions in any kind of bill and that they would pass one of our chambers,” Siegel added. “Any first year law student would recoil at this and think, ‘they can’t do that.’”

Beyond the constitutionality question, the bill will undoubtedly harm people living in Texas, as the state’s abortion restrictions have caused countless examples of injury and, in some cases, death.

According to research conducted by ProPublica, at least three people have died in Texas since the state began enforcing its abortion ban following the overturn of Roe v. Wade in 2022. That figure is likely much higher, however, as some deaths have probably gone unreported, given that Texas forbids its state maternal mortality review committee from listing lack of abortion services as a cause of death.