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Supreme Court takes on cases about Texas abortion law

Focus in Nov. 1 oral argument will be on how Texas designed the law to outflank the typical legal process

The Supreme Court is seen at sunrise last month.
The Supreme Court is seen at sunrise last month. (Photo By Tom Williams/CQ Roll Call)

The Supreme Court agreed Friday to consider quickly procedural questions around a Texas law that essentially bans abortion after six weeks of pregnancy, with a focus on how it was designed to outflank the typical legal process to challenge it.

The justices agreed to decide issues in two lawsuits — one from abortion providers and one from the Justice Department — and set both for oral argument Nov. 1. Both petitions seek to prevent the Texas law from being enforced while the courts consider the legal challenges.

The Supreme Court on Friday allowed the law known as SB 8 to stay in effect, as it has been for nearly two months, ahead of those oral arguments. The Justice Department says that the law covers about 85 percent to 95 percent of all abortions in Texas, and at a time before many women know they are pregnant.

Justice Sonia Sotomayor wrote separately to agree with the court’s move to quickly hear the cases, but she criticized the rest of the court for not stopping the law now. She said pregnant Texas women have to travel out of state if they want to end a pregnancy — and not all have the time, money or ability to do so.

“Women seeking abortion care in Texas are entitled to relief from this Court now,” Sotomayor said. “Because of the Court’s failure to act today, that relief, if it comes, will be too late for many.”

The Supreme Court rarely moves so fast, with oral arguments in these cases just 10 days after the order announcing that it would hear them. There was no indication Friday how soon the justices might issue rulings after the arguments.

While both lawsuits highlight that the Texas law all but nullifies longstanding Supreme Court precedents that establish a constitutional right to an abortion, the questions now before the court are limited to how legal challenges can move forward because of the structure of Texas’ law.

The law does not rely on state officials to enforce it. Instead, the law gives private citizens the right to file civil actions to recover at least $10,000 from anyone who helps a woman obtain an abortion.

That raises questions about how a court would order the law to not go into effect, even as the Supreme Court said last month that providers had raised “serious concerns” about the constitutionality of the Texas law.

On the challenge brought by abortion providers, the court in a 5-4 order ruled that the “complex and novel” procedural questions raised by the unusual design of the law prevented the justices from halting it from going into effect.

On Friday, the court agreed to hear in that case whether federal courts can review a law such as the Texas one, which prohibits a constitutional right but delegates that authority. Under current Supreme Court precedents, states cannot ban abortions before viability, or when the fetus could survive outside the womb.

And in the Justice Department case, the Supreme Court limited its review now to whether the United States has the right to file a lawsuit against Texas to get an injunction to stop enforcement of the law.

The Justice Department filed its lawsuit after the Supreme Court’s decision in the abortion provider challenge to let the law go into effect. The United States argues it can file a lawsuit against the state to stop “a series of tricks to try to evade the Constitution directly.”

The addition of the Texas cases heightens the attention on the justices this term, when the court will consider a separate case on the constitutionality of a Mississippi law that bans most abortions after 15 weeks of pregnancy.

Oral argument in that case is Dec. 1, with a decision expected by the end of the term at the end of June.

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