In only a handful of cases has the Supreme Court, where decorative turtles symbolize the deliberate pace of justice, moved as quickly as it is in the fight over the Texas law that bans most abortions. They include some of the most famous disputes of the last 50 years.
The cases being argued Monday could signal how the justices will rule in an even bigger abortion case that will be heard a month later and asks them to overrule the two landmark cases that guarantee a woman’s right to an abortion, Roe v. Wade and Planned Parenthood v. Casey.
But abortion is not directly at issue in the Texas cases. Rather, the court will decide whether abortion providers or the federal government can sue in federal court over the Texas law, which has an enforcement mechanism that Chief Justice John Roberts has described as “unusual, if not unprecedented.”
The high court has so far allowed the Texas law, which effectively bans abortion at around six weeks of pregnancy, to be in effect even as it appears to conflict with the Roe and Casey decisions. Those cases remain the law of the land until the Supreme Court says otherwise.
WHO CAN SUE, BE SUED?
The Texas law bans abortion once cardiac activity is detected in the fetus, usually around six weeks and before some women even know they are pregnant.
Federal courts have had no trouble blocking similar laws enacted elsewhere as inconsistent with the Supreme Court’s rulings on abortion that essentially don’t let states prohibit abortion before a fetus can survive outside the womb, usually around 24 weeks.
The difference in Texas is the way the law is enforced. Rather than let state officials enforce it, as typically happens, Texas puts the power in the hands of private citizens, who can sue anyone who performs or abets an abortion. The pregnant woman herself cannot be sued.
Texas legislators have said that they designed the law this way precisely to make it hard to challenge in federal court.
Abortion providers first sued to block the law before it took effect, but they were rebuffed by a federal appeals court and ultimately the Supreme Court.
The Justice Department then stepped in with a new lawsuit. A federal judge blocked the law, agreeing with the substance of the new suit, but the appeals court put the law back in place after just 48 hours.
When the Biden administration asked the court to block the law, the justices put off a decision but agreed to decide whether, at this early stage of the court fight, either providers or the federal government could sue in federal court to stop a law that the administration argues has “made abortion effectively unavailable in Texas after roughly six weeks of pregnancy.”
The decision on enforcement, the state and an architect of the law say in court papers, means that federal courts are effectively closed to the law’s challengers at this point. The issues also include whom to sue and whether federal courts have the power to compel state judges to follow their orders.
In neither case is the constitutionality of the law directly at issue, but the motivation for both lawsuits is that the Texas ban conflicts with Roe and Casey.
The Texas cases join Bush v. Gore, the Watergate tapes and Pentagon Papers cases, and just a few others that were heard and decided by the justices under a tight timeline that compressed months of briefings and arguments into weeks, and in some cases, days.
In those situations, hard deadlines loomed or the fate of a presidency hung in the balance.
It’s not clear why the court is acting so quickly now. The justices, by a 5-4 vote, rejected an early plea to block the law before it took effect in September.
The conservative majority’s one-paragraph opinion last month cited “novel and complex” procedural questions that the court usually leaves to lower courts to sort through before it steps in.
Polls conducted after the court’s Texas abortion vote showed sharp drops in approval of the court. At around the same time, several justices made public pleas that they not be viewed as partisan politicians.
It’s possible that the decision to grant full review to the Texas cases and, presumably, issue a reasoned opinion is aimed at addressing these concerns.
Then too, the court might want to have the Texas cases squared away before arguments on Dec. 1 in a case from Mississippi that could dramatically change abortion rights in the United States.
The justices have not offered an explanation for their actions. It remains to be seen how quickly the court will issue a decision.
Justices Clarence Thomas and Stephen Breyer are the only two justices who were members of the court during Bush v. Gore, which effectively settled the 2000 presidential election in favor of Republican George W. Bush. Thomas was part of the majority, and Breyer dissented.
Roberts was a law clerk to Justice William Rehnquist in 1981, when the court moved quickly to decide a case that was related to the release of the American hostages in Iran. Faced with a deadline for the U.S. to transfer previously blocked assets to the Iranians, the court acted in less than a month to grant, hear and decide the case. Rehnquist wrote the court’s opinion, which was issued eight days after arguments.
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