Bloomberg Law
Oct. 22, 2021, 9:29 PM

Supreme Court to Hear Texas Abortion Case; Law Stays for Now (2)

Greg Stohr
Greg Stohr
Bloomberg News

The U.S. Supreme Court said it will hear arguments on an expedited basis on a Texas law that has largely stopped legal abortion in the state, leaving the restrictions in place for now while raising the stakes in what will be a pivotal term for reproductive rights.

The measure, which is being challenged by clinics and the Biden administration, bans abortion after about six weeks of pregnancy, far earlier than the Supreme Court has previously allowed.

The Nov. 1 arguments will center on the law’s novel enforcement mechanism rather than the underlying abortion right. The law lets private parties, but not government officials, sue clinics and people who help facilitate abortions, leaving it unclear how a court could effectively stop the law. Critics say the provision has stymied efforts to block a blatantly unconstitutional law.

The Justice Department contended in court papers that Texas has “successfully nullified” the court’s abortion-rights precedents by designing the law to avoid federal judicial review.

The court was already set to hear arguments Dec. 1 on a Mississippi appeal that would give states far more power to restrict abortion and seeks to overturn Roe v. Wade, the landmark 1973 ruling that legalized the procedure nationwide. Although Texas also says Roe should be overturned, the court declined the state’s request to directly consider that issue in the newest case.

The Supreme Court reaffirmed Roe in the 1992 Planned Parenthood v. Casey ruling, which said states can’t impose significant restrictions before fetal viability, a point the court suggested was around 23 or 24 weeks at the time.

Sotomayor Dissent

The decision to let the law stay in effect came over the dissent of Justice Sonia Sotomayor, one of the court’s three Democratic-appointed members.

“Women seeking abortion care in Texas are entitled to relief from this court now,” she wrote. “Because of the court’s failure to act today, that relief, if it comes, will be too late for many.”

The high court let the law take effect Sept. 1 on a 5-4 vote, even while acknowledging “serious questions” about its constitutionality. The majority said the clinics and doctors challenging the measure hadn’t overcome procedural obstacles stemming from its unusual enforcement provisions.

After the Justice Department sued, a federal trial judge ruled the measure unconstitutional and blocked the law. That order lasted for two days before a federal appeals court reinstated the measure on a 2-1 vote.

That prompted the Biden administration to turn to the Supreme Court, seeking to temporarily block the law and suggesting the court might want to hear arguments and issue a definitive ruling.

“The fundamental question presented in this case is whether states may nullify disfavored constitutional rights by purporting to disclaim their own enforcement authority and delegating enforcement of unconstitutional laws to private bounty hunters,” acting Solicitor General Brian Fletcher told the Supreme Court in papers filed Monday.

The court said it was deferring action on the Justice Department request to block the law temporarily while the litigation goes forward.

”It’s devastating and outrageous what the Supreme Court did today,” said Brigitte Amiri, an American Civil Liberties Union lawyer who is part of the team challenging the law. “Today’s order is an alarming move by the Supreme Court, which has thus far rejected every opportunity to protect Texans’ constitutional rights.”

Texas Attorney General Ken Paxton’s office didn’t immediately respond to a request for comment. Paxton is leading the state’s defense of the law.

Right to Sue

The Justice Department said it doesn’t face the same obstacles the providers did, in part because the federal government can sue Texas directly without infringing the state’s sovereign immunity. The providers tried to sidestep sovereign immunity by suing the judges and clerks who would handle any private enforcement suits.

In agreeing to hear the case, the Supreme Court said it will decide whether the Justice Department may “bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.”

The Supreme Court is taking the unusual step of bypassing the appeals court, which hasn’t yet made a final ruling.

The Justice Department says the U.S. government has a sovereign interest in preventing states from nullifying federal rights. The department also says the Texas law interferes with the Bureau of Prisons and other federal agencies that by law must arrange for abortions in some circumstances.

Paxton says states can structure their laws so as to insulate them from legal attack.

“Neither the federal government nor abortion providers are entitled to demand Texas write its laws to permit them to be challenged in a pre-enforcement action in federal court,” Paxton argued in court papers filed Thursday.

The clinics and doctors are led by Whole Woman’s Health, which has four clinics in Texas. They argued that the Texas law is having such a sweeping effect on abortion rights that the Supreme Court shouldn’t wait months or years for the case to wend its way through the judicial system.

“The Texas legislature has openly defied federal law and has done so in a way purposely designed not only to deprive Texans of their constitutional right to abortion but also to forestall federal judicial protection of that right,” the providers argued in their appeal.

The Justice Department case is U.S. v. Texas, 21A85. The provider case is Whole Woman’s Health v. Jackson, 21-463.

(Updates with reaction in 14th paragraph.)

--With assistance from Laurel Calkins.

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Tony Czuczka

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