Texas, DOJ to Collide Over Abortion Law in Supreme Court Confrontation | National News - U.S. News & World Report
The Supreme Court is set to hear oral arguments Monday on Texas' controversial ban on abortions beyond six weeks of pregnancy after the high court expedited a hearing but declined to block the law's enforcement in the meantime.
But while legal observers are fixated on what the court's decision might say about the conservative majority's intentions toward Roe v. Wade, the issue currently at hand might only provide more fuel for speculation – as the justices' decision not to interfere with the law already has.
The high court's focus will not be on determining if Texas abortion law violates precedents set in the landmark 1973 case that establishes a woman's right to an abortion before fetal viability, instead it will look at the law's unique mechanism, determining if the federal government is entitled to challenge it.
Texas state officials have repeatedly stressed that the federal government has no authority over the case due to the mechanism of the ban, arguing in a brief filed this week ahead of the hearing that the law's pathway to the court should proceed through the correct defendants.
"A time will come – and no doubt soon – for the state courts to rule on the constitutionality of SB 8, and this Court will, in turn, retain the last word on the correctness of their adjudication of federal law," Texas Attorney General Ken Paxton wrote in a brief, using the proper name of the enabling legislation. "But the United States does not get a free pass around long-settled federal-courts doctrines because it would prefer to litigate in a federal forum just a bit faster."
The controversial Texas law, which incentivizes regular citizens to sue anyone whom they suspect has violated it – including health care workers, providers or anyone who helps someone access abortion services after six weeks of pregnancy – makes it harder, experts say, for advocates to challenge the measure.
The federal government and a group of Texas abortion providers also filed briefs this week in opposition to the law, arguing that the measure, which bans most abortions after six weeks of pregnancy, violates Roe v. Wade.
In its brief, the federal government criticized the mechanism of the law, echoing critiques repeatedly voiced by the Biden administration since it took effect in September.
"S.B. 8 was designed to nullify this Court's precedents and to shield that nullification from judicial review," acting Solicitor General Brian H. Fletcher wrote in the government's brief. "Texas insists that the Court must tolerate the State's brazen attack on the supremacy of federal law because S.B. 8's unprecedented structure leaves the federal Judiciary powerless to intervene."
But Fletcher noted that "if Texas is right, no decision of this Court is safe."
The high court's fast-tracking of the case came after the Justice Department, among others, brought the controversial ban back to the court, urging it to halt implementation of the law while it undergoes legal challenges. Texas' attorney general responded, asking the Supreme Court not to interfere.
But the high court chose not to block the law's enforcement, doing so for the second time since the law took effect on Sept. 1.
Justice Sonia Sotomayor dissented, arguing that the Texas law is "patently unconstitutional."
"For the second time, the court declines to act immediately to protect these women from grave and irreparable harm," Sotomayor wrote.
The number of abortions in Texas fell by half following implementation of the abortion ban afer six weeks of pregnancy on Sept. 1, according to a recent report from the University of Texas at Austin.
The Texas officials argued in earlier filings that if the high court were to move forward with Texas' law, it should overturn the Roe v. Wade decision that establishes a woman's right to an abortion before fetal viability.
"Properly understood, the Constitution does not protect a right to elective abortion," the Texas officials wrote. "If it reaches the merits, the Court should overturn Roe."
Monday's hearing follows nearly two months of back and forths, after the high court initially denied an emergency request to block Texas' ban on abortions performed after six weeks of pregnancy in a 5-4 vote as the state's law took effect, upholding the most restrictive measures on access to abortion in the nation. The court's decision led President Joe Biden the following day to announce plans to launch a "whole-of-government effort" in response to the court's inaction.
"The Supreme Court's ruling overnight is an unprecedented assault on a woman's constitutional rights under Roe v. Wade, which has been the law of the land for almost fifty years," Biden said in a statement after the law took effect.
The Biden administration sued the state of Texas over its abortion policy and later asked U.S. District Judge Robert Pitman to block the enforcement of the abortion law. Pitman briefly suspended the Texas ban, calling it "an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right." The ban was subsequently reinstated by a federal appeals court days later.
In its lawsuit, the Justice Department laid out its argument for unconstitutionality, writing that "it is settled constitutional law that 'a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.'"
The latest moves come amid what has been called the most restrictive year for abortion access since Roe v. Wade established a right to an abortion prior to fetal viability and as the Supreme Court already prepared to hear at least one challenge to the limits of the landmark case this term.
source: https://www.usnews.com/news/national-news/articles/2021-10-29/texas-doj-to-collide-over-abortion-law-in-supreme-court-confrontation
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