The Supreme Court on Friday refused to stop SB 8, the Texas fetal heartbeat law that went into effect September 1 despite the Department of Justice’s plea that it be halted while legal challenges go through the lower courts. It did, however, make an unusual move to fast-track oral arguments by setting them for November 1. Attorney General Merrick Garland called SB 8 a violation of five decades of SCOTUS rulings on abortion rights, which recognize the right to abortion up to 22 to 24 weeks when the baby is viable outside the womb.
The Texas fetal heartbeat law seems to have intrigued the country’s highest court. A few lawsuits have been filed against SB 8, including one by the Department of Justice on behalf of the Biden administration. Legal rulings on SB 8 have gone back and forth with liberal judges deciding in favor of stopping enforcement of the law while more conservative judges have ruled on the side of keeping the law in effect while legal challenges go through the courts. The latest example happened last week when the 5th Circuit Court of Appeals ruled that the law remains in effect while the law’s constitutionality is challenged.
The Texas law uniquely places enforcement of the law into the hands of private citizens instead of the state. The Biden administration considers the Texas law to be intolerable, a violation of the rights of women to abort a baby after a fetal heartbeat is detected, usually around six weeks. The Texas law gives private citizens the right to sue abortion providers or other private citizens who help a woman get an abortion. This includes friends who might drive a woman to an abortion clinic or someone who pays for the abortion. Tips are called into a hotline to report violations and that person reporting the violation may be eligible for a financial reward. It’s like the model used by CrimeStoppers to encourage private citizens to report crimes, in this case, abortions performed after six weeks. It’s not the state bringing a lawsuit against the abortionist and the clinic, it is a private citizen.
There is already a potential landmark case scheduled for December 1 when the court will hear oral arguments on a Mississippi ban on abortion that starts at 15 weeks. Pro-abortion activists accuse both the Texas law and the Mississippi law of being a step toward permanently striking down the Roe v Wade decision from 1973. In the meantime, abortions in Texas have plummeted since the law has been in effect.
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 the there cannot possibly be a constitutional violation under SB8, 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 [SB8],” 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 agreement by SCOTUS to hear oral arguments so quickly came just one day after the deadline for briefs in the case. Pro-abortion organizations argued the Texas law violates Roe and it is forcing women in Texas to travel out of state for an abortion. “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 is optimistic that the court “will reject the state of Texas’ cynical ploy to enact a brazenly unconstitutional abortion ban.”
In briefs filed for the pro-life side, the Human Coalition and the National Institute of Family and Life Advocates called it “shocking” that DOJ claims allowing SB 8 to remain in place will “irreparably harm” women seeking an abortion.
States weighed in, too, for and against SB 8.
“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 led the push, joined by California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin. Except for Maryland and Vermont, all of those states have Democratic 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.
There were two orders issued Friday by SCOTUS. It granted requests by the Biden administration and from a group of abortion providers to “leap-frog proceedings in the court of appeals” while allowing the law to remain in effect. Justice Sotomayor delivered a “stinging dissent”. In other words, the court will hear oral arguments from two cases, not just the one from DOJ.
The two orders suggest that the court will not directly weigh in on whether the Texas law, known as S.B. 8, violates the constitutional right to obtain an abortion. Instead, in the case brought by the Biden administration, the court will consider whether the federal government has the right to sue in federal court to block the law’s enforcement. And in the case brought by the abortion providers, the court will assess the law’s unusual private-enforcement structure, which deputizes private individuals to bring lawsuits against doctors, clinics, or anyone else who “aids or abets” an abortion.
In its two brief orders on Friday, the court granted “certiorari before judgment” – that is, review before the court of appeals issues a final ruling — in both cases, and it set a highly expedited briefing schedule, culminating in oral arguments in just 10 days.
Sotomayor’s dissent states she thought the court should have put a halt to the law’s enforcement until the constitutionality is determined. That is the Biden administration’s view.