U.S. Supreme Court takes up Texas abortion case, lets ban remain

A supporter of reproductive rights holds a sign outside the Texas State Capitol building during the nationwide Women’s March, held after Texas rolled out a near-total ban on abortion procedures and access to abortion-inducing medications, in Austin, Texas, U.S. October 2, 2021. (REUTERS)

The U.S. Supreme Court on Friday agreed to hear on Nov. 1 a challenge to a Texas law that imposes a near-total ban on the procedure and lets private citizens enforce it – a case that could dramatically curtail abortion access in the United States if the justices endorse the measure’s unique design.

The justices took up requests by President Joe Biden’s administration and abortion providers to immediately review their challenges to the law. The court, which on Sept. 1 allowed the law to go into effect, declined to act on the Justice Department’s request to immediately block enforcement of the measure.

The court will consider whether the law’s unusual private-enforcement structure prevents federal courts from intervening to strike it down and whether the federal government is even allowed to sue the state to try to block it.

The measure bans abortion after about six weeks of pregnancy, a point when many women do not yet realize they are pregnant. It makes an exception for a documented medical emergency but not for cases of rape or incest.

Liberal Justice Sotomayor dissented from the court’s deferral of a decision on whether to block enforcement of the law while the litigation continues. Sotomayor said the law’s novel design has suspended nearly all abortions in Texas, the second most populous U.S. state, with about 29 million people.

“The state’s gambit has worked. The impact is catastrophic,” Sotomayor wrote.

The Texas dispute is the second major abortion case that the court, which has a 6-3 conservative majority, has scheduled for the coming months, with arguments set for Dec. 1 over the legality of a restrictive Mississippi abortion law.

The Texas and Mississippi measures are among a series of Republican-backed laws passed at the state level limiting abortion rights – coming at a time when abortion opponents are hoping that the Supreme Court will overturn the landmark 1973 Roe v. Wade that legalized the procedure nationwide.

Mississippi has asked the justices to overturn Roe v. Wade, and the Texas attorney general on Thursday signaled that he also would like to see that ruling fall.

Lower courts already have blocked Mississippi’s law banning abortions starting at 15 weeks of pregnancy.

The Texas measure takes enforcement out of the hands of state officials, instead enabling private citizens to sue anyone who performs or assists a woman in getting an abortion after cardiac activity is detected in the embryo. That feature has helped shield the law from being immediately blocked as it made it more difficult to directly sue the state.

Individual citizens can be awarded a minimum of $10,000 for bringing successful lawsuits under the law. Critics have said this provision lets people act as anti-abortion bounty hunters, a characterization its proponents reject.

Nancy Northup, president of the Center for Reproductive Rights, which is representing the abortion providers, said Friday’s decision to hear their case “brings us one step closer to the restoration of Texans’ constitutional rights and an end to the havoc and heartache of this ban.”

Alexis McGill Johnson, president of healthcare and abortion provider Planned Parenthood, said it is “devastating” that the justices did not immediately block a law that already has had a “catastrophic impact” after being in effect nearly two months.

“Patients who have the means have fled the state, traveling hundreds of miles to access basic care, and those without means have been forced to carry pregnancies against their will,” she added.

Kimberlyn Schwartz, a spokesperson for the Texas Right to Life anti-abortion group, praised the court’s action, saying it “will continue to save an estimated 100 babies per day, and because the justices will actually discuss whether these lawsuits are valid in the first place.”

The Supreme Court only rarely decides to hear cases before lower courts have ruled, indicating that the justices have deemed the Texas matter of high public importance and requiring immediate review.

The Justice Department filed its lawsuit in September challenging the Texas law, arguing that it is unconstitutional and explicitly designed to evade judicial review.

Rulings in Texas and Mississippi cases are due by the end of next June, but could come sooner.

gsg