The Supreme Court on Friday allowed a Texas law banning most abortions to remain in effect for the time being. But in an unusual move, the judges said they wanted to hear arguments on the case as soon as possible.
These arguments in the November 1st High Court will help judges decide whether the law, the nation’s most restrictive abortion law, should be blocked while legal challenges continue.
The law, known as Senate Law 8, has been the subject of a number of legal challenges since it came into effect in September and had previously made a trip to the Supreme Court. However, apart from a brief window in which a lower court judge blocked the lock, it persisted. That has resulted in most women in Texas seeking abortions unable to get them unless they travel out of the state.
Here are some questions and answers about the law, its way through the courts, and what happens next.
WHAT EXACTLY DOES THE SUPREME COURT DECIDE?
The challenges to the Texas law in the Supreme Court were filed by abortion providers and the Biden government.
Texas law prohibits abortions once medical professionals can detect cardiac activity – usually about six weeks before some women know they are pregnant. This contradicts the Supreme Court precedent which says that states are prohibited from banning abortions before viability, the point at which a fetus can survive outside the uterus, around 24 weeks after pregnancy.
The Supreme Court could reconsider these precedents in a case it will hear in December, but not yet.
As for Texas law, the way it is written has so far made it unusually difficult to challenge in court. The judges are examining whether the Department of Justice and abortion providers can challenge the law in federal court. Even if the judges decide that either or both can sue, they still have to vote on whether the law should stay in effect while the legal challenges continue.
WHAT’S UNUSUAL ABOUT THE ACTION OF THE HIGHER COURT FRIDAY?
The dish moves at a really fast pace. There are usually months between the court’s approval to hear a case and arguments in a courtroom. This time the court has given the parties an extraordinarily compressed schedule to file pleadings and prepare for arguments in just over a week. This suggests that the judges plan to make a decision quickly.
In addition, the Supreme Court usually only agrees to hear arguments when lower federal courts have ruled a matter in conflicting ways. That is not the case here.
HOW IS THE LAW OF TEXAS UNUSUAL?
The law differs from similar efforts to restrict abortion in other states in that it leaves enforcement to private individuals who can sue doctors or anyone who helps a woman with an abortion. This unique enforcement mechanism thwarted efforts to challenge it. Ordinarily, the state would enforce the law and suing civil servants would be the appropriate legal remedy.
HAS THE CASE ALREADY BEEN BEFORE THE SUPREME COURT OF JUSTICE?
Yes sir. Abortion providers filed their lawsuit before the law went into effect and requested that the Supreme Court intervene to stop this. The court rejected it in a 5: 4 judgment. The majority of the judges said there had been “serious questions” asked about the law. However, they cited a number of issues including the law’s novel enforcement mechanism and the fact that no one had tried to sue someone under the law for helping a woman get an abortion as reasons they refused to intervene. The majority emphasized that they did not draw any conclusions about the constitutionality of the law.
Liberal justices and Chief Justice John Roberts disagreed. Judge Sonia Sotomayor called the decision of her conservative colleagues “stunning”. Judge Elena Kagan wrote that the law was “manifestly unconstitutional,” and Judge Stephen Breyer said a “woman has a constitutional right to have an abortion during” the first stage of pregnancy.
WHAT COULD BE EXPECTED NOW?
The four judges who would have blocked the law in the first place have raised all questions about its unusual structure. It is not clear whether one or more of the Conservatives who originally voted for the law to go into effect will be won over by the government’s arguments and will now vote to stop enforcing the law.
WHAT IMPACT DOES THE LAW HAVE IN TEXAS?
Since the law went into effect in early September, 80% or more of the abortions previously performed in the state have now been banned, according to vendors. Texas women have visited abortion clinics in neighboring states, a few hours’ drive in the middle of the night, including patients as young as 12 years old. The law makes no exception in cases of rape or incest.
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