High Court Hears Cases Over New Texas Law, But Outcome May Not Affect Abortion Access

The Supreme Court, whose conservative majority is seen on the verge of overturning decades-old rulings guaranteeing the right to abortion, heard its first two abortion cases for the 2021-2022 term on Monday. But the court could decide this case without ruling on the fate of abortion rights in America.

At stake is the future of a Texas law, which severely limits proceedings, which the High Court refused to block from coming into force in September. State law has halved the number of abortions in the state.

Texas law – known as SB 8 – is similar to laws passed by several states in recent years in that it prohibits abortion after detection of fetal heart activity, which usually occurs around six weeks after the onset of pregnancy. This is in direct violation of Supreme Court precedents in the years 1973 Roe vs. Wade and the years 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey, who say states cannot ban abortion until fetal “viability”, which is around 22 to 24 weeks. The law also does not provide an exception for pregnancies caused by rape or incest.

Texas law, however, differs from other state “heartbeat” laws in that it has a unique enforcement mechanism that gives state officials no role in ensuring that the ban is implemented. respected. Rather, it leaves the application to the general public, allowing civil lawsuits against not only anyone who performs an abortion, but anyone who “helps and encourages” the performance of an abortion, which could include those who conduct an abortion. patients to an abortion clinic or counseling. them. Those who sue and win will be guaranteed damages of at least $ 10,000. Opponents of the law call this a “bounty” to encourage individuals to sue their neighbors.

Supporters of the law said it was specifically designed to prevent federal courts from blocking the law, as no state official is involved in its enforcement and therefore is not responsible for it.

It is this enforcement mechanism that the Supreme Court examined during three hours of arguments on Monday. The first case, Whole Women’s Health et al. vs. Jackson et al., was brought in by a group of abortion providers, the second, United States v. Texas et al., by the Ministry of Justice. The question before the judges was not directly whether the Texas ban is unconstitutional, but whether abortion providers or the federal government can challenge it in court.

Marc Hearron of the Center for Reproductive Rights, who represented abortion providers, said Texas law, if upheld, could influence far more than abortion. “Allowing the Texas project to continue would provide a roadmap for other states to repeal any decision of this tribunal with which they disagree,” he told the judges.

United States Solicitor General Elizabeth Prelogar, during her first court appearance in this capacity, expressed similar sentiments, calling the Texas law a “brazen attack” on other branches of government. States, she said, “are not free to place themselves above this court, overturn court decisions and their borders, and block the judicial oversight necessary to defend federal rights.” .

But Texas Attorney General Judd Stone insisted neither of the two cases should be allowed to proceed and that any legal action should be dealt with in state courts. What both groups of plaintiffs want, he said, “is an injunction against the law itself. But federal courts don’t enjoin state laws, they enjoin officials. And because of the unique way the law was crafted, Texas officials are not involved in law enforcement.

At least a few members of the court’s Conservative majority, including Justices Amy Coney Barrett and Brett Kavanaugh, seemed at least somewhat skeptical about whether Texas could evade federal court scrutiny and what that might mean for some people. issues other than abortion. Several judges cited a “friend of the court »memory filed by a gun rights group that sided with abortion providers, not because they agreed with the abortion stance, but because the group wrote “That judicial review of restrictions on established constitutional rights, particularly those protected by the cases of this Court, cannot be circumvented in the manner used by Texas.”

This is a point made repeatedly by liberal-minded judges, who have made it clear that they oppose the Texas law. “Essentially, we would call on the states, all 50, with respect to their unprivileged constitutional rights, to try to strike down the law… that this Court has enacted as to the content of those rights,” Justice Elena Kagan said. . “I mean, it was something that before this law was passed, no state thought of doing it.”

The court has already shown its division on the law when it voted 5-4 in September to allow it to take effect. Barrett and Kavanaugh were in the majority in that vote. The court also refused to block the law when it accepted the pending case 10 days ago.

Typically, in important cases like this, decisions are made at the end of the tribunal’s term, either in the spring or next summer. However, this case was considered in the court’s “rocket case”, in the fastest-growing case since judges decided who should become president in the 2000s. Bush vs. Gore.

Another complication is that the court is due to hear arguments next month in a separate Mississippi case in which they will examine the future of abortion rights. That case, Dobbs v. Jackson Women’s Health Organization, challenges a law that seeks to ban abortions after 15 weeks of gestation. The court agreed in this case to consider whether states can ban abortion before viability.

The Texas case could be decided before or after the Mississippi case is heard, or the cases could be decided together.

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