Strictest-in-U.S. Abortion Law Is Focus of Supreme Court Today
Strictest-in-U.S. Abortion Law Is Focus of Supreme Court Today
(Bloomberg) -- The Texas abortion clash goes before the U.S. Supreme Court Monday, with providers and the Biden administration trying to cut through a procedural haze to block a law that has largely shut down the practice in the country’s second-largest state.
The fast-tracked showdown promises to combine dizzying complexities with straightforward ends. Texas and its allies say a bevy of legal doctrines prevent federal judges from blocking the law, which bans most abortions after six weeks of pregnancy, or even entertaining challenges by clinics, doctors and the Justice Department.
Abortion-rights advocates say the justices just need to find a way to block clearly unconstitutional law.
“If ever there were a need for the federal courts to step in, this is it,” argued the providers, a group led by Whole Woman’s Health, which has four clinics in Texas.
The justices are considering the two cases on an ultra-expedited basis, hearing arguments only 10 days after they agreed to take up the disputes while letting the law stay in effect in the meantime. The session is scheduled to last at least two hours, starting at 10 a.m. Washington time.
Opponents of the law will be tangling with a conservative-majority court that has already indicated a willingness to rethink precedents that have protected the right to abortion far later into pregnancy for the past half-century. The challengers will have to overcome what the court called “complex and novel antecedent procedural questions” when a 5-4 majority let the measure take effect two months ago.
Texas at one point said the court should use the case to consider overturning Roe v. Wade, the 1973 ruling that legalized abortion nationwide. But with that issue already teed up in a separate Mississippi case scheduled for Dec. 1, the justices indicated they will focus on the Texas’ thicket of procedural arguments.
Who to Sue
The law, known as Senate Bill 8, bars abortion after fetal cardiac activity can be detected and puts infringing clinics at risk of being shut down. The measure lets private parties sue a clinic, doctor or anyone who facilitates an abortion but doesn’t authorize government officials to sue alleged violators. Successful plaintiffs can collect a minimum of $10,000 in damages per procedure.
That novel provision is at the core of the Supreme Court fight. Texas says the approach means there isn’t anyone either the clinics or the Department can sue to have the law thrown out before it is enforced.
“The Constitution does not guarantee pre-enforcement review of state (or federal) laws in federal court,” Texas Attorney General Ken Paxton argued. He said those opposed to the law could make their constitutional arguments after being sued in state court for violating the measure.
The providers’ lawsuit names various Texas officials as defendants, including a state judge and court clerk who would be responsible for handling cases in their jurisdictions, along with an anti-abortion pastor who the clinics say has threatened to sue those who violate the act. The Justice Department is suing the state as a whole but seeking an order that would bind individuals.
When it let the law take effect Sept. 1 in the provider case, the Supreme Court majority said that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”
Texas also contends the federal government hasn’t suffered any type of injury that gives it legal standing to sue. The Constitution “does not grant a freestanding federal interest or grant of federal power to sue whenever the United States wants,” the state contended.
‘Brazen Nullification’
The Justice Department says the Texas law interferes with the Bureau of Prisons and other federal agencies that by law must arrange for abortions in some circumstances. More broadly, the department argues that the U.S. government has a sovereign interest in preventing states from nullifying federal rights.
“Texas’s various procedural objections do not withstand scrutiny once S.B. 8 is recognized for what it is: a brazen nullification of this court’s precedents accomplished by subverting the judicial review Congress authorized to protect the supremacy of federal law,” U.S. Solicitor General Elizabeth Prelogar argued.
The Justice Department says a victory for Texas would let other states put copycat laws in place, targeting abortion and perhaps other constitutionally protected rights.
The argument will be the first for Prelogar since she won Senate confirmation last week to be the Biden administration’s top Supreme Court advocate. Her adversaries will include Jonathan Mitchell, the former Texas solicitor general and the architect of the law. Mitchell is representing people who say they intend to sue violators of the law.
The high court’s handling of the case suggests it will issue a quick decision, perhaps in a matter of weeks or even days. The last case the court heard on such an expedited basis was Bush v. Gore, the ruling that resolved the 2000 presidential election deadlock. The court’s opinion in that case came a day after the argument.
Lurking in the background will be the uncertainty over the future of Roe and the follow-up 1992 Planned Parenthood v. Casey decision, which protects the right to abortion up until the point of fetal viability -- sometime after the 20th week of pregnancy.
Should the court use the Mississippi case to topple Roe and Casey, Texas won’t need the unusual enforcement mechanism to ban abortion. Like almost a dozen other states, Texas has a separate law that would kick in automatically -- and largely outlaw abortion -- if the Supreme Court overturns Roe.
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