Supreme Court to hear expedited arguments on Texas heartbeat abortion ban; law remains in effect

An overcast sky hangs above the U.S. Supreme Court on December 16, 2019, in Washington, D.C.
An overcast sky hangs above the U.S. Supreme Court on December 16, 2019, in Washington, D.C. | Samuel Corum/Getty Images

The U.S. Supreme Court will hear oral arguments on Nov. 1 to determine if Texas can lawfully enforce a ban on abortions once a fetal heartbeat is detected, usually around six weeks into a pregnancy.

In orders issued Friday, the high court granted a review in the cases of Whole Women’s Health et al v. Jackson et al and United States v. Texas. The Texas ban will remain in effect as the litigation continues.

The Supreme Court also ordered all parties involved to submit briefs no longer than 13,000 words in length by next Wednesday, with any possible reply briefs due by next Friday.

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Texas Gov. Greg Abbott signed Senate Bill 8, also known as the Texas Heartbeat Act, in May. The law prohibits most abortions once a baby’s heartbeat can be detected, often around six weeks gestation.

The law also allows private citizens to take civil action against abortion providers or any who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of abortion through insurance or otherwise.”

Justice Sonia Sotomayor dissented from the decision not to lift a lower court’s ruling to allow the law to remain in effect while the case is adjudicated. 

“I cannot capture the totality of this harm in these pages. But as these excerpts illustrate, the State (empowered by this Court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States,” she wrote. 

Critics argue that the heartbeat abortion ban contradicted the legal precedent of the landmark 1973 Supreme Court decision Roe v. Wade, which prohibited laws that banned abortion before fetal viability.

In a filing Thursday, Texas Attorney General Ken Paxton argued that the federal government "lacks a cause of action to challenge the constitutionality of SB 8 on behalf of a subset of Texas women" and is "not likely to show that it will succeed on the merits."

"Multiple courts of appeals have held that there is no equitable cause of action that permits the federal government to sue for violations of citizens’ Fourteenth Amendment rights," Paxton wrote. "Instead, terming SB 8 a 'nullification' of federal law, the federal government asks the Court to create a new equitable cause of action that will enable it to seek injunctive relief against the State of Texas."

The Supreme Court allowed the law to take effect on Sept. 1 as it continues to be challenged in the courts by both pro-choice groups and the Biden administration.

Earlier this month, U.S. District Judge Robert Pitman issued a preliminary injunction blocking the ban from being enforced, per the request of the U.S. Department of Justice.

However, the injunction was soon reversed by a three-judge panel of the 5th U.S. Circuit Court of Appeals.

Last week, another three-judge panel from the 5th Circuit granted a per curiam order expanding upon the earlier order, allowing the ban to remain in effect while the case continues.

Earlier this week, Acting U.S. Solicitor General Brian Fletcher asked the U.S. Supreme Court to vacate the 5th Circuit order allowing the abortion ban to remain in effect as the case is argued.

Fletcher claimed that Texas had “successfully nullified this Court’s decision [in Planned Parenthood v. Casey] within its borders.”

The 1992 high court ruling held that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

Carol Tobias of the National Right to Life denounced the Biden administration’s legal tactics against the law. She said in a statement that the administration’s actions proved that “abortion is the single most important thing to the Biden administration.”

“In no other area, from Kabul to the border crisis to inflation, has President Biden called for a whole-of-government response except in supporting abortion,” stated Tobias.

“The Biden administration’s unconditional support of the abortion industry shows just how far pro-abortion Democrats will go to curry favor with abortionists and abortion supporters.”

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