WASHINGTON — The U.S. Supreme Court on Friday again refused to halt enforcement of Texas’ new ban on abortions after six weeks, but put the case on a fast track, setting oral arguments for Nov. 1.
Abortions in Texas have been cut to a trickle since the high court allowed the law, known as Senate Bill 8, to take effect Sept. 1.
The federal Justice Department had asked the court to freeze enforcement as challenges work through lower courts. Attorney General Merrick Garland denounced SB 8 as a clear violation of five decades of Supreme Court rulings that recognize the right to abortion before a fetus is viable outside the womb — roughly 22 to 24 weeks.
The Biden administration views SB 8 as an intolerable, if clever, attempt to thwart judicial review, a view shared by many legal scholars.
Instead of having the state government enforce a ban on abortions once a fetal heartbeat is detected, which would clearly violate rights the Supreme Court has recognized since 1973, the new Texas law gives private citizens the right to sue doctors or anyone else who helps a woman get such an abortion, including a friend or even an unwitting taxi driver.
Successful plaintiffs are promised awards of at least $10,000.
Only a handful of lawsuits have been filed. But clinics have stopped providing most abortions for fear of the potentially ruinous costs.
The Supreme Court has struck down six-week abortion bans before. Justices likely were intrigued to take up this case, given that it hinges on a novel mechanism to deter abortions the state could not directly outlaw. Still, abortion providers and advocates for women’s rights were disappointed that the law remains in place.
“The Supreme Court has promised for nearly 50 years that abortion is protected by our Constitution, yet today they are allowing extremists to continue depriving Texans of our rights,” said Amy Hagstrom Miller, president & CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, an abortion provider that has challenged SB 8. “This dystopian state that Texas lawmakers have imposed on us, with neighbors tattling on neighbors for helping each other out, is not what most Texans would want for their families, friends, and neighbors.”
The Nov. 1 hearing will combine two cases that challenge SB 8 — one filed by Whole Woman’s Health and other abortion providers, the other filed by the Justice Department.
Conservatives hope the court’s year-old 6-3 conservative majority is prepared to overturn Roe vs. Wade, the 1973 landmark ruling that stemmed from a Dallas County woman’s challenge of a Texas law making abortion illegal.
The court did not issue an explanation for its decision to leave SB 8 in place. In a dissent, liberal Justice Sonia Sotomayor castigated the majority for tacitly deciding to “suspend” Roe in Texas, prolonging a “catastrophic” impact on women.
“There is no dispute that under this Court’s precedents, women have a constitutional right to seek abortion care prior to viability,” she wrote. Yet “there are women in Texas who became pregnant on or around the day that S. B. 8 took effect” who don’t even realize, seven weeks later, that they are pregnant, and for them, it’s already too late to “exercise their constitutional right to seek abortion care… anywhere in their home State.”
At Texas Right to Life, spokeswoman Kim Schwartz called Friday’s ruling “a great victory for the pro-life movement because the law will continue to save an estimated 100 babies per day, and because the justices will actually discuss whether the DOJ’s lawsuit is valid in the first place.”
Texas argues that the Justice Department is really asking for judges to stop millions of potential plaintiffs — people who may not even have considered filing a lawsuit — from using state courts to pursue their rights. In a brief filed with the Supreme Court on Thursday, the state insists that there cannot possibly be a constitutional violation under SB 8, because only the government can be accused of such a violation, and only private individuals have any role in enforcing the Texas abortion ban.
“Texas executive officials do not enforce [SB 8],” the state wrote in a response to the Biden administration, signed by Texas Attorney General Ken Paxton and other officials. “Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”
The court has already planned oral arguments for Dec. 1 on a Mississippi ban that starts at 15 weeks — also long before the viability threshold set in Roe.
Although the Supreme Court has now repeatedly rebuffed efforts to freeze SB 8, it has not ruled on its constitutionality.
Abortions plummeted in Texas from Sept. 1 until Oct. 6, when a U.S. district judge in Austin, Robert Pitman, halted enforcement on grounds that SB 8 is a blatant violation of Roe. A panel of the 5th Circuit Court of Appeals reversed that ruling two days later and last week, the 5th Circuit extended that order.
“For half a century, this Court has held that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’ ” the federal government argued in a filing on Monday asking the Supreme Court for an emergency order halting SB 8.
“S.B. 8 defies those precedents by banning abortion long before viability — indeed, before many women even realize they are pregnant,” the application reads. “But rather than forthrightly defending its law and asking this Court to revisit its decisions, Texas took matters into its own hands by crafting an ‘unprecedented’ structure to thwart judicial review.”
The Supreme Court signaled high interest, immediately setting a deadline Thursday for briefs, then agreeing a day later to take the case.
Medical organizations and former prosecutors filed briefs in support of the Justice Department’s effort. They contend the law is a clear violation of Roe, and that it has already imposed a burden on Texas women seeking an abortion, on abortion providers and on neighboring states where clinics have been inundated with out-of-state patients.
“A state cannot be permitted to disregard… precedent by passing an unconstitutional law and shielding it from federal judicial review,” a group of legal scholars argued.
Nancy Northup, president and CEO of the Center for Reproductive Rights, said she was “enormously disappointed” that the Supreme Court left the law in effect but optimistic that justices ultimately “will reject the state of Texas’ cynical ploy to enact a brazenly unconstitutional abortion ban.”
On the other side, the Human Coalition and the National Institute of Family and Life Advocates, which oppose abortion, filed a brief calling it “shocking” for the Justice Department to “claim that allowing SB 8 to remain in place will ‘irreparably harm’ women seeking abortion.”
States led by Republicans weighed in on behalf of Texas, as Democratic states offered support to the Biden administration.
“The order below threatens to expose every State in the Union to suit by the federal government whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere,” read a brief submitted by Indiana, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Ohio, Oklahoma, South Carolina, South Dakota, Utah and West Virginia in support of Texas.
All but Kansas, Kentucky and Louisiana have Republican governors.
Attorneys general from 23 states and the District of Columbia urged the Supreme Court to block SB 8.
Massachusetts, which has a Republican governor, led a coalition of states led by Democrats – California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Washington and Wisconsin – along with Maryland and Vermont, which also have Republican governors.
“This ban is blatantly unconstitutional under this Court’s longstanding precedents; is inflicting irreparable harms on people across Texas; and is harming people in our own States as well, including by impeding access to abortion for our own residents due to the large number of Texas residents traveling to seek care elsewhere,” those states argued.