Texas, and indeed the nation, will be watching the U.S. Supreme Court on Monday as it takes up two challenges to the Lone Star State’s new abortion law, the most restrictive in the nation, and hears arguments on one of the most polarizing topics in American politics today.
The court on Monday will consider two separate challenges to the Texas law, which bans abortions after the first detection of fetal heart activity, usually at six weeks of pregnancy and when most women do not even realize they are pregnant. Gov. Greg Abbott signed the bill, Senate Bill 8, into law in May with an effective date of Sept. 1.
Texas abortion providers in the first case and the U.S. Justice Dept. in the second case both argue that the Texas law is at odds with the court’s 1973 precedent-setting Roe v. Wade case, which determined that states could not restrict a woman’s constitutional right to choose an abortion. In addition, the challengers argue that the law was written in a manner that would allow the state to avoid the law’s review by federal courts.
What makes this bill unique is that, instead of the state enforcing the law, SB 8 allows ordinary citizens to sue abortion providers or anyone involved in the facilitation of helping a woman get an abortion.
Supreme Court Justices will consider two central issues when they begin on Monday. First, whether the United States has the authority to bring suit in federal court against the State of Texas. Second, they'll consider whether the state is insulated from judicial review because the law deputizes private citizens to enforce it.
While the ruling in the cases before the Supreme Court on Monday may determine whether the law can remain in effect in Texas, it is unlikely to create a ruling on the future of the constitutional right to abortion recognized in Roe v. Wade.
Another abortion case involving a Mississippi law could be more of a determinant of that issue when the U.S. Supreme Court begins scheduled arguments in the case one month later on Dec. 1.
The court on Oct. 22 agreed to fast-track the challenges to Texas law but refused a request from the challengers to immediately block the law while it considered arguments.
The fast-tracking of the challenge was unusual for the Supreme Court and spoke to the weight of the case during a court session packed with controversial cases. It’s the fastest the court has taken up briefing and arguments since the 2000 election case of Bush v. Gore.
The court’s exceptionally hastened schedule meant both sides of the cases had to quickly file opening briefs for their cases by last Friday.
The Department of Justice said in its briefing that it was in the federal government’s interest to hear the case quickly because “other states are already regarding SB 8 as a model.”
“Texas insists that the Court must tolerate the State’s brazen attack on the supremacy of federal law because SB 8’s unprecedented structure leaves the federal judiciary powerless to intervene," the justice department argued in its briefing filed Friday. “If Texas is right, no decision of this Court is safe.”
The department also said that because the procedure is practically banned in the Lone Star State, Texans are crossing state lines to go as far as Nevada to get abortion services.
“We're talking an average of 600 miles for folks to come and get health care,” said Adrienne Mansanares, the chief experience officer for Planned Parenthood of the Rocky Mountains. “So, that has a very damaging effect on whether or not a person is able to get that care, how they feel when they're coming to our health center, and how nervous or scared they are.”
Texas Attorney General Ken Paxton filed a single brief for both challenges, saying that neither the federal government nor the abortion providers had the right to sue the state of Texas on this law.
“Texas does not cause the United States injury by the mere existence of an allegedly unconstitutional state law that may affect private parties," Paxton wrote.
What the Justice Dept. is doing in its arguments against the Texas law is “beating their chests,” said Chelsey Youman of Human Coalition, a Texas-based anti-abortion nonprofit organization. “They're pandering, certainly, but they're not real legal arguments. And I think it's worth noting to the abortion providers that there's no certainty out of liability for them.”
Some legal experts say the conservative majority court is sending mixed signals ahead of the challenges. Justices are keeping the abortion law in place while the procedural matters are resolved but still ordered an accelerated schedule.
“It’s a very delicate time at the Supreme Court as the different justices are deciding who do they align with and what compromises might they be willing to make, and where do they think the law actually takes them,” said Carol Sanger, a professor of law at Columbia University and the author of “About Abortion: Terminating Pregnancy in the 21st Century.”
Houston native Kenya Martin will be one of those Texans closely monitoring what the court decides. Martin said getting an abortion saved her life.
She’s nervous about the outcome of the court’s decision and if it will keep the restrictive Texas law in place.
“I’m nervous for the people of Texas,” Martin said. “I'm nervous for the community of color, I’m nervous for the clinic that I used to work with.”
“We want to be trusted that we can make these decisions that impact our lives and our families. It should be nobody else's business,” she said.