WASHINGTON — The Supreme Court on Monday takes up two challenges to the nation’s most restrictive abortion law: the Texas measure that has all but stopped abortions in the state.
The court’s decision to consider the issue on an unusually accelerated schedule ramps up the drama over abortion, as the justices prepare to hear an even more consequential case a month from now. On Dec. 1, Mississippi will urge the court to overrule Roe v. Wade and declare that there is no constitutional right to abortion.
The cases Monday involve two challenges to the structure of the Texas law, which bans abortion after doctors can detect a fetal heartbeat, about six weeks into a pregnancy. The law, known as S.B. 8, was designed to make it hard to challenge in court. The proceedings begin at 10 a.m. ET.
Because the Supreme Court has ruled that states cannot ban abortion before the age of fetal viability, around 24 weeks, Texas officials could not enforce the ban themselves. So the law delegates enforcement, allowing any private individual to sue anyone who carries out or aids in an abortion.
Those suing can collect at least $10,000, potentially subjecting abortion providers to the prospect of repeated and ruinous lawsuits.
The justices must decide whether abortion providers in Texas and the Justice Department have the legal right to challenge the law in court and to seek orders banning state court clerks and judges from doing anything in response to the lawsuits.
Acting U.S. Solicitor General Brian Fletcher told the court in his written briefs that Texas must not be allowed to nullify the Supreme Court’s abortion precedents. “If Texas is right, no decision of this court is safe.”
He said the Justice Department has the authority to challenge a law that seeks to deny a right guaranteed by the Constitution. If Texas prevails, any state “may simply outlaw the exercise of whatever constitutional rights they disfavor.”
Judd Stone, the state solicitor general in Texas, said the federal government has no legal power to sue the state, because the law does not give state officials any role in enforcing S.B. 8. “Texas does not cause the United States injury by the mere existence of an allegedly unconstitutional law that may affect private parties.”
As for a separate lawsuit by abortion providers, Texas said they must wait until a lawsuit is filed under S.B. 8 and then take their challenges to a state court.
But Marc Hearron of the Center for Reproductive Rights, representing Texas abortion clinics, said the federal courts must be available when a state enacts “a blatantly unconstitutional statute, assigns enforcement authority to everyone in the world, and weaponizes the state judiciary to obstruct those courts’ ability to protect constitutional rights.”
Abortion providers said the law has prevented thousands of pregnant Texans from getting abortions in the state, forcing those who can afford it to travel a thousand miles or more to states where they can obtain the procedures.
The Supreme Court twice refused to block enforcement of the law while the two challenges worked their way through the courts. But it did agree to take up the appeals on a fast track.
Even so, the court isn’t likely to issue its decision until the spring in such a complicated case involving a novel state law. The Texas law will remain in effect in the meantime.