Texas abortion ban remains in effect as judges consider outcome
Washington – It’s been more than two weeks since the Supreme Court’s unusually hasty debates over Texas’ unique abortion law without a word from the judges.
They raised expectations of swift action by setting the case on a fast track that is rarely used. However, so far, the court’s silence means that women cannot have an abortion in Texas, the second largest state, after about six weeks of pregnancy.
This was before some women even knew they were pregnant and well before the 1973 Supreme Court rulings allowing states to ban abortion.
There has been no indication of when the court might act and there is no official timetable for reaching a decision.
Mary Ziegler, a legal historian at Florida State University School of Law, said the law has been in place since Sept. 1, and the court was unable to muster five votes to stop it. “Although there is some sense of urgency, some judges have more sense of urgency than others,” Ziegler said.
Meanwhile, judges are still two weeks away from hearing the arguments in another abortion case with potentially huge ramifications for abortion rights in the United States.
The court will consider Mississippi’s call to overturn two key Supreme Court rulings that guaranteed a woman’s right to abortion from 1973. The state’s relevant law prohibits abortions after 15 weeks, long before the time a fetus can survive outside the womb.
Survival, usually around 24 weeks, was the dividing line: Prior to this, states could regulate but not prohibit abortion.
Even before the judges decided what to do about Mississippi law and the fate of Roe v. Wade and Planned Parenthood v. Casey, Texas law effectively changed the standard, at least for the time being.
Abortion is prohibited after cardiac activity in the fetus is detected, usually around six weeks, and private citizens deputize to enforce the law rather than state officials who normally do so.
The law permits lawsuits against clinics, doctors, and anyone who “aids or abets” an abortion that is not permitted by law.
It is designed to make appeals to the federal court difficult, if not impossible. Federal courts had no problem preventing other prohibitions on abortion in early pregnancy from taking effect when they relied on traditional enforcement.
Texas law does what its authors intended. In its first month of operation, a study published by researchers at the University of Texas found that the number of abortions statewide was down 50% compared to September 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Assessment Project. .
Texans who left the state seeking abortions have been forced to travel outside of neighboring states, as clinics can’t keep up with the increase in patients from Texas, according to a separate study by the Guttmacher Institute.
The Supreme Court is considering complex cases in two challenges posed by Texas abortion providers and the Biden administration. These issues include who, if any, can sue the law in federal court, the typical route to challenging abortion restrictions, and who should be targeted with a court order ostensibly trying to obstruct the law.
Under Supreme Court precedents, it’s not clear whether the federal court can limit the actions of state court judges who will hear cases against abortion providers, court clerks who will be charged with accepting filings or anyone who may one day wish to sue.
Usually people who bring cases have to target others who have already caused them harm, not those who might one day do so and not court officials who are only doing their jobs by hearing and deciding cases.
The justices’ history with Texas law dates back to early September when, by 5-4 votes, they refused to block it from serving.
At the time, five conservative justices, including three appointed by President Donald Trump, voted to allow the law to go into effect. Chief Justice John Roberts joined the court’s three Liberals.
Abortion providers brought the case to court on an emergency basis. After they were rejected, the Department of Justice stepped in with its own suit.
U.S. District Court Judge Robert Pittman granted the Department of Justice’s request to issue an order suspending the law. Bateman wrote in a 113-page ruling that the law denied Texas women their constitutional right to abortion, rejecting state arguments that federal courts should not interfere.
But just two days later, the Fifth United States Court of Appeals overturned Bateman’s decision and allowed the law to be reinstated.
The Ministry of Justice submitted its emergency appeal to the Supreme Court. Instead of ruling on this appeal, the court decided to hear the two suits after only 10 days and without benefiting from the decision of the appeals court.
In pleadings, two Trump appointees appeared to have doubts about Texas law. Justices Amy Connie Barrett and Brett Kavanaugh questioned whether the law would allow people being sued to file their constitutional claims in court and whether it would lead to a series of copycat laws on abortion and other rights protected by the Constitution.
Sarah Marshall Berry, legal fellow at the Heritage Foundation, said the court appeared particularly concerned about the “chilling effect” of similar laws on other constitutional rights, including speech, religion and gun ownership.
The court enters him with a few peers in recent history, including Bush v. Gore, the fight to publish the government’s secret history of the Vietnam War known as the Pentagon Papers, and Richard Nixon’s efforts to prevent the delivery of the Watergate tapes that eventually sentenced him to his presidency.
The justices have never said why they chose to hear the Texas cases so quickly or when they would be decided.
The time elapsed since arguments is less than a blink of an eye in the terms of the Supreme Court, as months typically elapse between arguments and a decision. But the judges themselves created an expectation that they would move quickly.
“This is important, of course,” Ziegler said, “but there is no deadline for the presidential election in sight.” “Even through Thanksgiving it will be extraordinarily fast.”
One possibility is that the court intends to issue a ruling before arguments regarding the Mississippi abortion law on December 1st.
But Perry said she believes the court may delay adjudication in the Texas case until it issues its decision on the abortion, likely in late June. That would leave the Texas ban in effect.
There is a lot that may only become clear once a decision is made.
If the court rules in favor of abortion providers or the Department of Justice, will there be an accompanying order prohibiting the law? This would be the quickest way to allow abortions to resume after six weeks. Judge Elena Kagan raised the possibility of a warrant during the pleadings.
Will there be a majority opinion speaking on behalf of at least five justices or is the Court so divided that there are at least five for a particular outcome, but for different reasons? Either side would be happy with five votes, but the majority opinion holds more power.
How many judges will write separate opinions, on both sides? Diffusion of opinions can slow down the process, as judges circulate, comment, and review opinions in their internal deliberations.
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