Supreme Court agrees to hear oral arguments in two Texas abortion ban cases
© WikiMedia (US Capitol)
Supreme Court agrees to hear oral arguments in two Texas abortion ban cases

The Supreme Court again refused Friday to block enforcement of a Texas law that effectively bans all abortions after six weeks but agreed to fast-track oral arguments in two cases about the law.

The two cases are Whole Woman’s Health v. Jackson and United States v. Texas. The former case was brought by a coalition of Texas abortion providers challenging the private-enforcement mechanism of Texas’ S.B. 8, the law that would ban abortions after six weeks, a time when many women do not realize they are pregnant. Instead of being enforced by the state, S.B. 8 allows “any person” to bring a civil suit against anyone who “aids or abets” an abortion. The abortion providers are questioning whether a state can “insulate” a law from review by a federal court by enacting this unusual private enforcement mechanism.

The case is currently before the Fifth Circuit Court of Appeals, but the abortion providers in September asked the Court to expedite consideration of their petition for a writ of certiorari before the Fifth Circuit issues its judgment. They argue that because of the extreme harm to Texas residents caused by S.B. 8, the fact that the law is “patently unconstitutional,” and because the Fifth Circuit “has already made clear that it will not provide relief,” the Court should step in at this stage. The Court waited nearly a month before acting on the request, likely prompted by the federal government’s recent filing in United States v. Texas.

That case is the Biden Administration’s challenge to S.B. 8’s constitutionality, but that is not the question that the government is asking the Court to decide. The government asked the Court to reinstate the decision of a lower court judge who determined that S.B. 8 is unconstitutional and blocked it temporarily. The Fifth Circuit issued a stay of the lower court’s ruling, allowing the law to remain in effect. The Court decided to regard the government’s request as a petition asking whether the federal government can bring suit to obtain injunctive or declaratory relief against the state to prohibit the law from being enforced.

Justice Sonia Sotomayor wrote a partial dissent to the Court’s order in United States v. Texas, noting that this is the second time the Court has declined to protect “women from grave and irreparable harm.” By denying any relief, the Court “enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas,” she wrote. She warned that every day S.B. 8 remains in effect increases the odds that its statutory scheme “will be adapted to attack other federal constitutional rights.”

Oral arguments for both cases are set for November 1, a greatly accelerated briefing schedule for such high-profile cases.