The emergency application
places the justices back in the center of a firestorm created by the law that bars abortions before most women even know they are pregnant.
The justices could act at any time, although they are likely to ask for a response from Texas. Normally, once they get the response, the Justice Department has a chance to reply before the court issues an order in the case.
On September 1, a deeply divided court allowed the Texas law to go into effect, as a part of a different legal challenge brought by abortion providers. That decision rendered Roe v. Wade
a dead letter in the country’s second-largest state.
As the justices consider the law again, they will review the record detailing how the law has impacted women and clinics on the ground over the past six weeks. In sworn declarations, abortion providers say that it has had a chilling effect because staff are “plagued by fear and instability,” and they “remain seriously concerned that even providing abortions in compliance with S.B. 8 will draw lawsuits from anti-abortion vigilantes or others seeking financial gain” under the law’s enforcement provision, which offers up to $ 10,000 in damages.
Providers in neighboring states said under oath that they have been overwhelmed with patients traveling from Texas seeking an abortion. When Judge Robert Pitman of the US District Court for the Western District of Texas temporarily blocked the law
earlier this month, he said that from the moment it went into effect, “women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”
And in a stark rebuke to the Supreme Court, Pitman wrote: “that other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of the offensive deprivation of such an important right.”
The 5th US Circuit Court of Appeals, however, has stayed Pitman’s ruling, meaning the law is in effect for now. It rejected the Justice Department’s petition to lift the stay last Thursday night. DOJ immediately told reporters it planned to appeal.
A key issue in the case is whether the federal government has the legal right or “standing” to bring the challenge at hand. The DOJ says it does, in part, because private individuals bringing suit are acting as agents of the state and the government has the power to protect the fundamental rights of its citizens.
But Texas Attorney General Ken Paxton, a Republican, says the federal government doesn’t have the right to step in.
He is supported by a brief filed by Jonathan Mitchell, one of the architects of the law who is now representing three individuals who are interested in bringing lawsuits against those who may violate the law.
Mitchell wrote that the states “have tools in their arsenal to limit the judiciary’s opportunities to pronounce their statutes unconstitutional.”
Mitchell said that states can structure their laws in a way that “reduces or eliminates” laws from being challenged before they are actually enforced. “And that is what Texas has done,” he said. “By prohibiting state officials from enforcing the statute and by authorizing the citizenry to enforce the law through private civil-enforcement actions, Texas has boxed out the judiciary from entertaining” such challenges.
Mitchell added that abortion is “not a constitutional right,” but instead it is “a court-invented right that may not even have the majority support on the current Supreme Court.”
The court has yet to act on a similar petition to block the Texas law brought by abortion providers in the state, suggesting that the justices may want to deal with both disputes at the same time. The cases come up on the court’s emergency docket — sometimes referred to as its “shadow docket”– that has come under criticism of late because the court acts without the benefit of a full briefing schedule and oral arguments.
On September 1, for example, when the court allowed the law to go forward, Justice Elena Kagan, joined by Justices Sonia Sotomayor
and Stephen Breyer
, criticized the majority for acting “hastily” on an order “of great consequence.” “The majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking — which every day becomes more unreasoned, inconsistent and impossible to defend,” Kagan wrote.
Justice Samuel Alito
later that month gave an unusual speech rejecting criticism that the court had improperly handled some of the cases on its emergency docket. He said the recent criticism by the media and political actors was geared to suggest “that a dangerous cabal is deciding important issues in a novel, secretive, improper way, in the middle of the night, hidden from public view.”
In December, the Supreme Court will also consider a Mississippi law that bans the procedure after 15 weeks. In that case, the state is asking the court to overturn Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.
Neither the Texas law nor the Mississippi law has an exception for rape or incest.