The Supreme Court will hear arguments next month in a case involving a Texas law banning abortions once a fetal heartbeat is detected, fast-tracking a thorny legal matter ahead of a separate case that could result in the overturn of the court’s landmark Roe v. Wade decision.
Last week, a divided federal appeals panel rejected the Justice Department’s attempt to block the law from staying in effect while legal challenges make their way through the court system.
The nine Supreme Court justices will consider the same issue Nov. 1, as well as whether the Biden administration and abortion providers even have standing to challenge the law in federal court.
The law, known as Senate Bill 8 or SB 8, went into effect in early September after the Supreme Court declined an emergency appeal filed by abortion providers. The law has remained in place since except for a brief window earlier this month when it was blocked by a lower court judge.
The law prohibits abortions once medical professionals can detect cardiac activity — which usually happens at around six weeks, before some women know they’re pregnant. No exceptions are made in cases of rape or incest, but one is provided in the event of a “serious medical emergency” in which the doctor must prove the woman could die or face serious bodily harm if the abortion isn’t carried out.
While similar measures in other states have been struck down by federal courts, the Texas law has so far prevailed due to its unusual structure that leaves enforcement up to private citizens rather than state officials. Anyone who brings a successful lawsuit against an abortion provider for violating the law is entitled to claim at least $10,000 in damages.
The White House and abortion providers allege that Texas lawmakers have put a bounty on women who wish to terminate their pregnancies, as well as anyone who assists them in doing so. Providers say that 80 percent or more of abortions previously provided in the Lone Star State are now prohibited since the law took effect.
The court voted 5-4 to deny the emergency stay request in September, with Chief Justice John Roberts joining Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in dissent. The majority said that while “serious questions” had been raised about the law’s constitutionality, the unique enforcement structure and the fact that no one had yet actually attempted to sue someone under the law persuaded them not to intervene.
“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit,” the majority wrote at the time. “In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
The Texas law will come before the court exactly one month before it is scheduled to hear arguments in Dobbs v. Jackson Women’s Health Org., which involves a Mississippi law that prohibited abortions after 15 weeks, but was successfully challenged by the state’s only abortion clinic.
In briefs filed at the Supreme Court this summer, Mississippi Attorney General Lynn Fitch argued that the justices should overturn the 1973 decision in Roe v. Wade, as well as a 1992 decision prohibiting states from banning abortion before viability, the point at which a fetus can survive outside the womb.
With Post wires