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Justices To Hear Texas Abortion Case on Monday Nov. 1

October 22, 2021 by Dan McCue
U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON – The Supreme Court will hear a challenge from the federal government and abortion providers to Texas’ 6-week abortion ban on Nov. 1, but will leave the law in place while it considers the cases, the court said on Friday.

As is their custom, the justices did not explain their rationale for fast-tracking the case, but the move comes amid challenges from both the U.S. Justice Department and Texas abortion providers, who argue the Texas law clearly violates the high court’s 1973 decision in Roe v. Wade.

Justice Sonia Sotomayor wrote in dissent on the court’s failure to stay the law until she and her fellow justices have an opportunity to hear the case and rule on it.

“For the second time, the Court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas,” Justice Sotomayor wrote. “For the second time, the Court declines to act immediately to protect these women from grave and irreparable harm.”

“The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now. These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether,” Sotomayor said.

Indicative of how quickly the court was to move: The justices informed attorneys on each side that their initial briefs are to be no more than 13,000 words in length and filed electronically by close of business, Wednesday, Oct. 27.

Third parties wishing to file amicus curiae briefs must also do so by the close of business Wednesday.

Any reply briefs deemed necessary must be limited to no more than 6,000 words, and must be filed before the close of business on Friday, Oct. 29.

The Texas law banning most abortions after about six weeks of pregnancy initially went into effect on Sept. 1 and has been the object of litigation — and court decisions — ever since.

The law bars abortions once cardiac activity can be detected in the embryo. This typically occurs around the sixth week of pregnancy. Opponents of the law argue this time limit falls before many women even know they are pregnant.

The law does not make exceptions for rape or incest. And while it does permit abortions for health reasons, the exceptions are narrowly drawn — essentially allowing the termination of a pregnancy only if it could endanger the mother’s life or lead to “substantial and irreversible impairment” of a major bodily function.

What makes the law unique in the annals of abortion litigation is that it bars state officials from actually enforcing it, a design intended to make it difficult to challenge in the courts.

Instead, the Texas law deputizes private citizens to sue anyone who performs an abortion or “aids and abets” a procedure. Plaintiffs who have no connection to the patient or the clinic may sue and recover legal fees, as well as $10,000 if they win.

The justices have consolidated the two Texas cases for their Nov. 1 proceedings: U.S. v. Texas, the challenge brought by the Justice Department against the state of Texas, and Whole Woman’s Health v. Jackson, which was filed by abortion providers.

The justices were already scheduled to hear a similar case, Dobbs v. Jackson Women’s Health Organization, on Dec. 1 challenging a Mississippi law that bans nearly all abortions after 15 weeks.

Mississippi Attorney General Lynn Fitch, the first woman to ever serve in that position, has already said she is asking the court to overturn Roe v. Wade.

Now, because of the speed at which the justices have decided to move, the Texas case will precede it by a month.

In U.S. v. Texas, state officials are asking the court to consider overturning both Roe v. Wade and the 1992 case Planned Parenthood v. Casey, which upheld the right to an abortion.

The Texas case is No. 21-463, Whole Woman’s Health, et al. v. Jackson, Judge, et al.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.

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