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Supreme Court set hearing on Texas abortion ban, leaving law in place for now

The Supreme Court agreed Friday to hear two cases challenging the near-total ban on abortions in Texas. 

The arguments for both cases are set for Nov. 1 and the justices will only consider the questions presented in the case, which concern procedural matters and not the constitutionality of the law. The court will not block the ban while considering the case. 

Justice Sonia Sotomayor concurred in part and dissented in part in the Biden administration’s challenge to the law, agreeing the case should be heard but disagreeing that law should stay in effect in the meantime. 

“For the second time, the court declines to act immediately to protect these women from grave and irreparable harm,” Sotomayor wrote. 

She added, “These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether. Because every day the court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent from the court’s refusal to stay administratively the Fifth Circuit’s order.” 

The decision to hear the dispute comes after the Biden administration filed a brief with the Supreme Court on Friday morning in its effort to thwart a near-complete ban of abortions in Texas, calling the state’s defense of the law not only wrong but dangerous as the baton is passed to the high court to decide if it will hear the case.

Abortions in Texas were banned after the detection of fetal cardiac activity — approximately six weeks after a woman’s last menstrual period and two weeks after a woman’s first missed period — following the implementation of Senate Bill 8, also known as the Texas Heartbeat Act, in September. The law was passed along party lines in the GOP-controlled Texas legislature in the spring. 

In an attempt to preemptively stop the law, Whole Woman’s Health and other abortion providers filed a suit in Austin federal court. The suit was halted after the Fifth Circuit issued a three-paragraph order canceling the injunction hearing. The abortion providers then appealed to the Supreme Court to block the Fifth Circuit ruling but were denied an emergency order in a 5-4 decision that let the law go into effect. 

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The Biden administration then tried its hand to stop the ban and was granted a favorable ruling from U.S. District Judge Robert Pitman, an Obama appointee who found the law unconstitutional. However, the victory was short-lived. The Fifth Circuit moved only 48 hours later to overturn Pitman’s ruling in a 2-1 decision. 

The government formally moved the case to the Supreme Court on Monday, asking the justices to overturn the Fifth Circuit’s ruling. Texas fired back against the request on Thursday claiming the government lacked jurisdiction but also suggesting the court could grant certiorari and overturn its abortion rights precedents in Roe v. Wade and Planned Parenthood v. Casey.

In its reply brief filed Friday, the Department of Justice again asked the court to overturn the Fifth Circuit’s ruling and restore the district court’s injunction. The government suggests that if Texas’ argument were to prevail, “no one could sue to stop the resulting nullification of the Constitution.” 

“If Texas is right, no decision of this court is safe,” the brief states.

SB 8 has been successfully implemented in large part due to its unique enforcement mechanism. The law gives enforcement power to private citizens instead of government officials. These private citizens are allowed to sue anyone who aids in an illegal abortion. Because of this provision, the law is enforced by the judiciary, which has created problems for those who have tried to block the ban.

“S.B. 8 is entirely different. It seeks not to redress specific private injuries, but to enlist the public at large in enforcing the state’s unconstitutional prohibitory statute,” the reply brief states. “It does so by creating an unprecedented enforcement scheme in which pregnant women have no means to challenge the violation of their rights and any person (indeed, any number of people) can sue based on any abortion.” (Parentheses in original.)

Texas argued in its response brief that the federal government does not have the authority to challenge the state law, but the government countered it has a right to protect its sovereign interests and that has long been recognized by the court. 

“The United States has an obvious sovereign interest in preventing a state from nullifying federal law and thwarting federal judicial review,” the brief states. 

The government acknowledged Texas’ procedural arguments that its suit is unusual but said Texas’ law itself is what is “not only unusual, but unprecedented.” 

“The reason there has not been a suit exactly like this before is that no state has ever tried to subvert the Constitution through this sort of brazen procedural ploy,” the brief states. “But S.B. 8’s novelty does not immunize it from effective judicial relief.” 

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Both Texas and the Biden administration have suggested the high court could consider their briefs as petitions for certiorari and decide to hear arguments in the case. Texas said if the court does so, it should consider the validity of its landmark Roe and Casey abortion decisions. The government asserted its ongoing support of the two decisions but also argued that was not the case before the court. 

The Justice Department argues Texas is thwarting the court’s power by voiding its precedents before it even reviews them itself. 

“The question here is whether Texas should be permitted to nullify this court’s precedents before the court itself has had an opportunity to decide whether to revisit them,” the brief states. "The court should not tolerate that result."

The Supreme Court could take action as soon as Friday afternoon.

The government’s case is working through the court in tandem with the abortion providers' case, Whole Woman’s Health v. Jackson, which is also waiting for the court’s decision. Whole Woman’s Health is also centered on a procedural matter — whether abortion providers sued the right defendants. 

These two cases are preceding a challenge to Roe and Casey the court has already agreed to hear in December, Dobbs v. Jackson Women’s Health.

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Both Texas and the Biden administration have suggested the high court could consider their briefs as petitions for certiorari and decide to hear arguments in the case.