The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)
The Supreme Court on Friday declined to immediately block Texas’s heartbeat abortion law, which allows private citizens to sue providers who perform abortions after a heartbeat can be detected, but agreed to hear arguments in the case beginning in November.
The justices said they will decide whether the Biden administration has the right to sue Texas over the law.
Liberal Justice Sonia Sotomayor wrote that she would have immediately blocked the law.
“The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now,” Sotomayor wrote.
The case will focus not on the abortion ban itself but on whether the Justice Department can sue and obtain a court order that would effectively halt the law from being enforced, the Court said in its brief order.
The administration argued in a brief filed earlier on Friday that if the law remains in effect “no decision of this Court is safe. States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever rights they disfavor.”
While other state-level bans on abortion before 24 weeks have been blocked by the courts due to Supreme Court precedent, the Texas law has a unique enforcement mechanism that allows any individual to sue anyone who knowingly performs or aids in an abortion after a fetal heartbeat has been detected, removing the responsibility of enforcement from the state’s executive branch and placing it into the hands of citizens. Plaintiffs can earn up to $10,000 in damages through litigation.
“Texas should not obtain a different result simply by pairing its unconstitutional law with an unprecedented enforcement scheme designed to evade the traditional mechanisms for judicial review,” the administration argued.
On Thursday, Texas urged the court to leave the law in place. The state argued the federal government does not have the authority to file its lawsuit challenging the abortion ban.
The law has been in effect since September, save for a 48-hour period in which a federal judge in Austin temporarily halted the ban.
U.S. District Judge Robert Pitman had granted the Biden administration’s request to temporarily block enforcement of the abortion ban and denied the state’s request to pause his ruling pending appeal, saying “this Court will not sanction one more day of this offensive deprivation of such an important right.”
“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote in a 113-page ruling. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”
However, the Fifth Circuit Court quickly put the order on hold and reinstated the law pending further review.
The Texas case comes as the Supreme Court had already been set to hear arguments in a major abortion case on December 1 that will give the justices an opportunity to reconsider the precedent set by the landmark Roe v. Wade and Planned Parenthood v. Casey decisions.
That case involves a Mississippi law passed in 2018 that bans abortions after 15 weeks with limited exceptions. The law was blocked by the 5th U.S. Circuit Court of Appeals as under existing precedent, states may not ban abortions before fetal viability, which is typically around 22 weeks or later.
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