Supreme Court Hears Arguments in Cases Challenging Controversial Texas Abortion Law

What’s the story?

• The Supreme Court on Monday heard oral arguments regarding a pair of procedural challenges to a controversial Texas abortion law that effectively prohibits abortions after a fetal heartbeat can be detected (usually 6-8 weeks into pregnancy).
• The Texas law’s enforcement mechanism raises novel constitutional questions because it enables individuals to sue for the enforcement of the law rather than the government. Thus far, no such private lawsuits have been filed, so it’s unclear whether any party has standing to raise a valid legal challenge, since lawsuits contesting the constitutionality of a law are typically directed at government officials. In early September, the Supreme Court rejected a preemptive lawsuit that was seeking an emergency injunction against the enforcement of the Texas law before the case was heard by lower courts.
• The Court heard arguments in two cases: Whole Woman’s Health v. Jackson, which is an effort by abortion providers to sue to block the law’s enforcement by Texas county clerks who would docket lawsuits filed under the abortion law; and U.S. v. Texas, which is a lawsuit filed by the federal Dept. of Justice (DOJ) arguing that the Texas abortion law was unconstitutionally designed to evade judicial review. 
• While oral arguments don’t always indicate how a justice will vote on a case, a majority of the justices seemed to side with abortion providers’ argument that they had standing to challenge the Texas law’s constitutionality while questioning the DOJ’s ability to mount a challenge on those grounds. That majority includes Justice Brett Kavanaugh and Justice Amy Coney Barrett, who were in the majority when the Court decided on the first suit related to the Texas law.
• During Monday’s arguments, Kavanaugh described the Texas law’s enforcement mechanism as “a loophole that’s been exploited here, or used here” that could “easily be replicated in other states” to target other constitutionally protected rights, such as gun rights or religious rights. Barrett seemed to suggest that abortion clinics should be able to challenge the law in federal court when she said, “I’m wondering if, in the defensive posture in state court, the constitutional defense can be fully aired.”
• A decision in these cases is expected to come relatively quickly, likely before the end of the year, but it’s unclear exactly when that will be released.
• The Supreme Court is scheduled to hear arguments in another abortion-related case on December 1st when it will evaluate the constitutionality of Mississippi’s ban on abortions after 15 weeks of pregnancy (except in cases of medical emergencies and severe fetal abnormalities).

— Eric Revell

(Photo Credit: Supreme Court: VoxLive via Flickr / Creative Commons)