Why Abortion Has Soared to the Top of the Supreme Court’s Docket

(Bloomberg) -- The U.S. Supreme Court raised the stakes in the politically explosive fight over reproductive rights by agreeing to hear arguments on Nov. 1 on a Texas law that has largely shut down legal abortion in the state. The court won’t directly decide if the law -- which bans almost all abortions after six weeks of pregnancy -- violates Roe v. Wade, the 1973 ruling that legalized the procedure nationwide. Nor will the justices be addressing whether to overturn its abortion-rights precedents; that’s an issue they will consider in a separate case on Dec. 1. But the decision to intervene in the Texas case -- and hear arguments on a highly expedited schedule -- reshapes the multifaceted legal fight. The outcome could hint at the fate of abortion rights nationwide. 

1. What is the court deciding?

The core issues stem from the law’s delegation of enforcement power to private parties, a feature Texas included to try to thwart federal judicial review. Since federal courts typically block unconstitutional laws by enjoining the government officials responsible for enforcement, that part of the Texas law left judges without a clear path to intervene. In separate cases being taken up together by the justices, abortion providers and the Justice Department are asking the court to declare that, one way or another, federal courts have the power to reject the Texas law as unconstitutional. The providers are seeking to sue various Texas officials, including the state judges and court clerks who would be responsible for handling any private lawsuits, while the Justice Department is suing the state as a whole. 

2. Would a ruling against Texas mean abortions could resume?

Probably, though not automatically. A ruling in favor of the abortion providers and Justice Department would let them sue, but it wouldn’t block application of the law. That would require the justices taking the additional step of lifting a federal appeals court order that is currently keeping the law in force. The Justice Department has asked the Supreme Court to do that. 

3. What would a ruling in favor of Texas mean?

Other Republican-controlled states could move quickly to put copycat laws in place, targeting abortions and perhaps other constitutionally protected rights. And abortion would remain largely illegal in Texas.

4. How unusual is it for the Supreme Court to take up a case so quickly?

Extremely. The court normally takes months to decide whether to hear an appeal and then allots several more for the parties to file their briefs. By contrast, the arguments Monday will take place only two weeks after the Justice Department asked the Supreme Court to intervene. 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 decided that case -- and sealed the election for Republican George W. Bush -- four days after Bush asked the justices to intervene. The court moved almost as quickly in the 1971 Pentagon Papers case, when it took only about a week to hear arguments and rule that the government couldn’t stop the New York Times and Washington Post from publishing the government’s secret history of the Vietnam War. And in 1974, the court took 45 days from start to finish to decide that then-President Richard Nixon had to turn over secret White House tape recordings, leading to his resignation.

5. Why the rush in this case?

It’s not clear, but here are two possible explanations. First, the justices might want to resolve the Texas case before hearing arguments on Dec. 1 over Mississippi’s law banning abortions after the 15th week of pregnancy. Second, justices are facing increased scrutiny over their handling of the so-called shadow docket, the stream of emergency requests that has become a major chunk of the court’s work. It was through that process that the court let the Texas law take effect Sept. 1 with only a paragraph of explanation, drawing sharp criticism. The Justice Department’s request to block the law started off on the shadow docket as well. The justices might have decided they didn’t want to issue another terse order and instead would hold arguments and quickly issue a more definitive ruling.

6. What does all this mean for Roe v. Wade?

The fate of Mississippi’s law banning abortions after the 15th week of pregnancy may prove far weightier for the future of abortion rights. Upholding that law would mean gutting the 1992 Planned Parenthood v. Casey ruling, which barred states from imposing significant abortion restrictions before fetal viability, a point the court suggested was around 23 or 24 weeks at the time. Mississippi originally asked the court to throw out the viability standard without necessarily overturning Roe. After Justice Amy Coney Barrett was confirmed -- giving the court a 6-3 conservative majority -- the state decided to go further and directly ask the court to overrule Roe and Casey. Should Roe fall, the Texas case could become a mere footnote in the abortion-rights fight. Texas is one of about a dozen states with laws in place to make abortion largely illegal should the Supreme Court overturn Roe.

The Reference Shelf

• QuickTake explainers on the Texas law and the Mississippi law.
• Critics say the Supreme Court’s “shadow docket” is playing too big a role.
• The Guttmacher Institute’s examination of state battles over abortion.
• Cornell Law School’s primer on Roe v. Wade.

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