SCOTUS set to take up Texas abortion law Monday, won’t rule on law constitutionality

Texas Politics

AUSTIN (Nexstar) — On Monday, the U.S. Supreme Court is poised to hear arguments on Texas’ abortion law, which bans abortions once cardiac activity is detected, without exceptions for rape or incest. 

Texas’ abortion law is unique, because it’s enforced by private citizens, not the state. 

This time around, however, the court won’t be considering the substance of the law and whether it violates Roe v. Wade. Instead, it will hear arguments in two cases challenging whether Texas’ restrictive abortion law can stay in place while lower courts consider legal challenges. These cases were brought by the U.S. Justice Department and abortion providers. 

“The Texas case will not focus on the difficult issue of when states can ban abortion,” Blackman said. “The Texas case will focus on a very narrow question, a procedural question: ‘how can this unique law be challenged in court?’

There are two key questions: does the United States have the right to sue Texas and can Texas pass a law that effectively bans an otherwise constitutional right when enforcing the law is up to private citizens, not the state.

While the DOJ argued the state of Texas is trying to prevent the High Court from reviewing SB8, Texas argued the only way to argue against the constitutionality of SB8 is to wait for a lawsuit against someone who performed an abortion.

“Texas argued, as it has before, that these are not proper suits, that the way to test the constitutionality of SB8 is to actually perform the abortion and wait to be sued and see what the courts say,” said Blackman.

However, the law has already had a ripple effect on abortion access in Texas. Some fear if the Supreme Court allows the law to stay in place, it will further limit access and cause harm to women. 

“Senate Bill 8 will only lead to more unsafe abortions. The kind of unsafe, risky abortions that killed my patient nearly 50 years ago,” said Dr. Harold Miller, a retired OB/GYN in Houston.

If the Court’s majority determines the DOJ cannot sue Texas to block the law, things will remain the same for now. 

And if the Court favors Texas, Austin Kaplan, a civil rights attorney, warns the decision will have implications on much more than abortion laws.

“They’ve basically greenlighted legislatures across the country to write laws to do away with any constitutional protections they don’t like,” Kaplan said. 

“So if California passes a law that’s hard to enjoin but bans gun ownership, are we going to just allow that?” Kaplan asked.

Those who support Texas’ abortion law argue it’s protecting lives. 

“We estimate that the Texas Heartbeat Act saves between 50 to 100 lives every single day,” said Kimberlyn Schwartz with Texas Right to Life. 

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