The Supreme Court on Friday said it will consider legal arguments over the Texas abortion law that is the nation’s most restrictive on Nov. 1, and that the law will remain in effect.
The court granted an expedited review of what is called S. B. 8, which the Biden administration in a filing Friday said “has virtually eliminated abortion in Texas after six weeks of pregnancy.”
The decision sets up a momentous term for abortion rights at the Supreme Court. The justices on Dec. 1 will consider a Mississippi law that bans most abortions after 15 weeks, far earlier than the court’s precedents currently allow.
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Abortion opponents have urged the court to use that case to loosen precedents that say states may not prohibit abortion before fetal viability, generally thought to be around 22 to 24 weeks. Mississippi and abortion opponents have asked the court to use the case to overturn Roe v. Wade and Planned Parenthood v. Casey, which first established a constitutional right to abortion in 1973 and reaffirmed it in 1992.
In the Texas case, the court said it will consider the law’s unique enforcement policy, which authorizes individual citizens to sue anyone who helps a woman obtain an abortion after cardiac activity is noted in the embryo, usually about six weeks.
The court did not accept a request from Texas specifically to reconsider Roe and Casey.
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Instead, it limited its inquiry to whether the United States or abortion providers may bring suit in federal court to keep S. B. 8 from being enforced.
Justice Sonia Sotomayor was the lone dissenter in the order. She agreed the court should expedite review of the law, but said it should have blocked it until the case is decided. She was also among those who objected when the court allowed the law to go into effect Sept. 1.
“Women seeking abortion care in Texas are entitled to relief from this Court now,” Sotomayor wrote. “Because of the Court’s failure to act today, that relief, if it comes, will be too late for many.”
She said to consider those who became pregnant the day the law went into effect.
“As I write these words, some of those women do not know they are pregnant. When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State.”
The schedule is extraordinary for the Supreme Court, which normally allows months between accepting a case and scheduling it for argument. John Elwood, a Washington lawyer who closely tracks the court’s docket, tweeted that it was the “most expedited briefing & argument since Bush v. Gore” after the contested 2000 election.
When the Supreme Court considered a request to keep the state law from going into effect, the majority’s one-paragraph opinion cited the law’s “complex and novel” procedural questions and said it was not clear that abortion providers challenging the law were suing the proper defendants.
“Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” the majority wrote in allowing the law to go into effect. Those justices — Clarence Thomas, Samuel A. Alito Jr. and President Donald Trump’s three nominees, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — added that the law presented “serious” constitutional questions.
The court’s three liberals — Sotomayor and Justices Stephen G. Breyer and Elena Kagan — said it was clear to them the law was, in Sotomayor’s words, “flagrantly unconstitutional.”
She said that presented with a law “engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”
Chief Justice John G. Roberts Jr. provided a fourth vote for blocking the law, saying it required additional judicial scrutiny.
“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. He would have allowed more time for courts to consider “whether a state can avoid responsibility for its laws in such a manner.”
After the suit brought by abortion providers was turned away, the Justice Department got involved, suing the state of Texas on behalf of those who it said were being denied their constitutional rights.
A federal district judge agreed with the government. Judge Robert L. Pitman halted the law, writing “This court will not sanction one more day of this offensive deprivation of such an important right.”
But two days later, a panel of the U.S. Court of Appeals for the 5th Circuit overruled him, and reinstated the law. It said it would consider the merits of the law in December.
But the abortion providers and the Justice Department asked the Supreme Court not to wait for the 5th Circuit to weigh in.
If the law stays in effect, “no decision of this Court is safe,” wrote Acting Solicitor General Brian H. Fletcher. “States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever rights they disfavor.”
Texas Attorney General Ken Paxton (R) said the court should stay out of it for now, and that challenges to the law should move through state courts.
“Federal courts are not ‘roving commissions assigned to pass judgment on the validity of the Nation’s laws,’ ” said Paxton’s filing, quoting a 1973 Supreme Court decision. “Neither is the Department of Justice.”
The two cases the court set for argument Nov. 1 are U.S. v. Texas and Whole Women’s Health v. Jackson.