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Texas ban on 6-week abortions at brink of Supreme Court showdown

On Monday the Supreme Court will hear a consolidated and accelerated challenge to what is nearly a complete ban abortion: a Texas law banning the procedure at six weeks, about a third of the standard set in precedent that turns on the viability of the fetus, in other words its ability to survive outside the womb.

The law does not make exceptions for cases of rape or incest, and the dueling challenges that will go before the high court on Wednesday were lobbed by the U.S. Department of Justice and a group of Texas abortion providers led by Whole Woman’s Health.

Known as the Texas Heartbeat Act or Senate Bill 8, the ban took effect on Sept. 1 after a panel of the the Fifth Circuit canceled a federal judge's injunction, and after the Supreme Court declined to intervene in a 5-4 split. While the Fifth Circuit has the reputation as the country's most conservative federal appeals court, the Supreme Court became a 6-3 lock for Republicans with the replacement last year of Justice Amy Coney Barrett for the late Justice Ruth Bader Ginsburg — a composition not seen since the 1930s.

The cases before the court focus not on the constitutionality of the ban but how it is enforced. To wit, SB 8 is designed to evade judicial review by barring state officials from carrying out enforcement and instead deputizing private citizens to sue anyone who aides in an illegal abortion. Procedural issues that the justices will attempt to untangle include whether abortion providers in the Whole Woman’s Health case sued the right defendants, and whether the federal government has a cause of action to sue Texas in the other. 

“The procedural issues have thwarted our ability to get to the substantive merits issues,” Marc Hearron, senior counsel at the Center for Reproductive Rights and lead counsel on Whole Women’s Health case, said during a press conference after the court announced it would fast-track arguments last week. 

Jonathan Mitchell, the architect behind the law's enforcement mechanism, is set to argue his case before the high court directly. Mitchell did not respond to multiple requests for comment on the case. In his brief submitted on behalf of Texas, Mitchell argues the Justice Department can not bring a case against the Texas law because it would violate the separation of powers. He claims this responsibility would fall to Congress, which is already considering a bill that would challenge the law. 

“The executive’s impatience with the progress of this bill does not allow it to sue Texas unilaterally, and neither the United States nor this Court can invoke 'equity' to create a novel cause of action that Congress has (thus far) failed to provide,” Mitchell said in his brief

Texas asked the court to consider the validity of precedent both from Roe v. Wade, the 1973 case that first announced a woman’s constitutional right to an abortion, and the 1992 case Planned Parenthood v. Casey, which implemented the so-called "viability analysis."

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“If it reaches the merits, the Court should overturn Roe and Casey and hold that SB 8 does not therefore violate the Fourteenth Amendment,” Texas Solicitor General Judd E. Stone II wrote in his brief for the case with Whole Woman's Health.

When granting certiorari, the justices made clear they would not wade into the merits, focusing only on if the federal government was allowed to sue the state, state court judges, state court clerks and other state officials to block SB 8. 

Abortion advocates and attorneys representing Whole Woman’s Health meanwhile claim that SB 8 and other laws that have chipped away at abortion access over decades could nullify Roe.  

“The Supreme Court doesn't have to explicitly overturn Roe v. Wade or Planned Parenthood v. Casey to effectively ban abortion or to push it out of reach entirely,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said on a call with reporters. “We've seen this incrementalism over decades in terms of pushing abortion out of reach, trying to ban abortion, and there is this concern that the Supreme Court can effectively eliminate access to abortion without explicitly overturning Roe and that's something that everybody should keep their eyes on.”

Solicitor General Stone claimed in his brief that SB 8 does not violate the Casey precedent, that the undue burden in the case would result from the lawsuits affecting abortion providers and not the person receiving the abortion. Like Mitchell, no representative for the state responded to multiple requests for comment. 

“By incorporating the undue-burden defense, SB 8 creates liability for only those post-heartbeat abortions that are not protected under this Court’s current precedent,” the brief states. “SB 8 therefore does not unconstitutionally 'ban' previability abortions, nor does it delegate the authority to any person to prevent an abortion that this Court’s precedent protects.”

On the ground in Texas, Amna Dermish, a medical doctor in obstetrics and gynecology who is regional director of Planned Parenthood of Greater Texas, said the results of the law had been catastrophic to her patient’s ability to receive medical care. 

“Each time we have to deny a patient an abortion — a safe and constitutionally protected medical procedure — I'm being forced to carry out the state's agenda, a radical agenda that was always about scoring a political victory,” Dermish said through tears on a call with reporters. “I’m being forced to inflict pain on my patients but the reason I became a doctor is to heal and to help them. I’m weary and I'm heartbroken by the real possibility that the Supreme Court won't block this cruel law.”

The enforcement mechanism used in SB 8 that has stymied its opponents has also received criticism for the precedent it could set for other constitutional rights. A gun rights group, the Firearms Policy Coalition, filed an amicus curiae brief in support of the court granting certiorari in the Whole Women’s Health case. Erik Jaffe, counsel of record for the group, said they were not taking a stance for or against abortion but instead for the precedent the law could set for other constitutional rights like the First and Second Amendments. 

“I think it boils down to, if you can do it to abortion you can do it anything,” Jaffe said in a phone call. 

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Jaffe said if the Supreme Court were to rule in favor of the Texas law, “it would basically be a war of the states against the federal judiciary.” States would be able to pass laws protecting or eviscerating whatever constitutional right their political party is in favor of and there would be little opportunity to stop them. 

“Texas has just sort of put itself out front by leading with its jaw and being the most aggressively obnoxious of the states, but I have every confidence that California and New York will learn the lesson of this if Texas ends up winning and getting away with this tactic,” Jaffe said. “I have every confidence that legislators there are smart enough to be able to figure out how to do this to things that they like or dislike.” 

The Justice Department has also made this argument in its briefs before the court suggesting in its reply brief that if Texas’ argument were to prevail, “no one could sue to stop the resulting nullification of the Constitution.” 

The government argues that the Texas abortion ban is “unprecedented” and a “brazen procedural ploy” to subvert the constitution. 

Texas argues its law does not violate the 14th Amendment because abortion is not required by law.

“The idea that the constitution requires states to permit a woman to abort her unborn child is unsupported by any constitutional text, history, or tradition,” Texas argues in its brief. 

Insisting that the Department of Justice cannot sue the state to stop the law, it says the government lacks equitable cause to sue because executive officials do not enforce SB 8. 

“The merits of the federal government’s arguments fare no better,” Texas’ brief states. “Assuming there is a claim for preemption (and there is not), none of the laws that the federal government identifies preempt SB 8 because they do not require Texas to permit post-heartbeat abortions. Intergovernmental immunity is not implicated because Texas law presumes that federal programs would be exempt from SB8. And there is no violation of the Fourteenth Amendment because SB 8 itself contains an undue-burden defense that prevents its enforcement where the Constitution requires abortion.” (Parentheses in original.)

The Justice Department claims Texas is trying to nullify the court’s precedents before it can even review them themselves and that it has standing to bring the case to protect its sovereign interests.

“I mean the idea that the federal government is not injured by a state blatantly violating the constitution and creating tremendous harm throughout the state is just poppycock,” Amiri said. 

For the Justice Department, Hearron said, the best-case scenario would be the court ruling that it does have standing to bring cases in these circumstances and then rule on the pending motion to lift the Fifth Circuit’s stay and reinstate the injunction blocking the law. He continued that if the court were to rule that no one can sue to block the law, it would be a “dead letter” for federal constitutional rights. 

“It's just so unbelievably cynical that we have a group of individuals who have passed SB 8 and courts that have effectively allowed it to take effect in the meantime when it's really just thumbing its nose at the constitution and the court system and the rule of law,” Amiri said. “It's just devastating in terms of the impact and just next level in terms of ignoring how government is supposed to work.” 

Justice Sonia Sotomayor spoke to this concern last week in an opinion about the decision to grant certiorari. Though the Obama appointee agreed with the decision to hear the case instead of just sending it back to the Fifth Circuit, she objected over the court opting to keep the ban in place while proceedings continued. 

“I cannot capture the totality of this harm in these pages. But as these excerpts illustrate, the State (empowered by this Court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States,” Sotomayor wrote (parentheses in original). “The State’s gambit has worked. The impact is catastrophic. These ruinous effects were foreseeable and intentional.” 

The Texas abortion cases will be heard one month before a case directly challenging Roe and Casey precedents, Dobbs v. Jackson Women’s Health, that seeks to ban abortion after 15 weeks of pregnancy in Mississippi.

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A gun rights group, the Firearms Policy Coalition, filed an amicus curiae brief in support of the court granting certiorari in the Whole Women’s Health case. Erik Jaffe, counsel of record for the group, said they were not taking a stance for or against abortion but instead for the precedent the law could set for other constitutional rights like the First and Second Amendments.

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