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SCOTUS Will ‘Quickly’ Take Up Challenge to Texas Abortion Law

SCOTUS Will ‘Quickly’ Take Up Challenge to Texas Abortion Law


The Supreme Court said Friday it will leave the Texas abortion law in place for now but take up legal challenges over the statute in a pair of courtroom arguments on November 1st. And exactly one month later, on December 1st, the nation’s highest court will hear the biggest abortion case of the term, Mississippi’s direct challenge to Roe v. Wade.

The court’s decision to defer action on SB 8 comes a day after Texas urged the high court to deny the federal government’s request to block its enforcement. The Texas law, unlike every other abortion restriction to come before the Supreme Court, does not depend on state officials to enforce it. Instead, anyone can file a private lawsuit against an abortion provider and seek up to $10,000. The court said it will defer action on the Biden administration’s request to put the law on hold while the justices take up the appeals. As a practical matter, that means the Texas law known as Senate Bill 8 will very likely remain in effect for several more months while the court considers its fate.

The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

The court also said it would hear arguments 10 days from now on the separate question of whether the federal government has the authority to challenge the unusual law, and whether an injunction to block its enforcement can apply to state court judges. But Justice Sonia Sotomayor said the Supreme Court should have put the Texas law on hold while considering these issues. “The promise of future adjudication offers cold comfort,” she wrote Friday, “for Texas women seeking abortion care, who are entitled to relief now.”

The law that took effect in September bans abortions as early as six weeks of pregnancy, before most women know they are even pregnant. It has stopped nearly all abortions in the state, forcing women seeking treatment to travel to other states. Decisions in the SCOTUS cases are unlikely to be issued before spring.

Texas has “successfully nullified” the Supreme Court’s past decisions on abortion within the state’s borders, the Justice Department told the court Friday in urging it to immediately block SB 8.

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“If Texas is right, no decision of this court is safe. States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever rights they disfavor; disclaim state enforcement; and delegate to the general public the authority to bring harassing actions threatening ruinous liability,” the government said.

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