The US supreme court allowed a Texas law that bans the vast majority of abortions to temporarily remain in effect, but will hear arguments on 1 November. The law, known as Senate Bill 8, bans the procedure after roughly six weeks gestation or before most women know they are pregnant.
The justices said they will decide whether the federal government has the right to sue over the law. The court’s action leaves in place, for the time being, a law Texas clinics say has led to an 80% reduction in abortions in the nation’s second-largest state.
The refusal by the court’s conservative majority to block the law while oral arguments are prepared was excoriated by the liberal justice Sonia Sotomayor, who called the decision “cold comfort” to Texas’s 6 million women of reproductive age.
“The court is right to calendar this application for argument … in recognition of the public importance of the issues these cases raise,” wrote Sotomayor. “The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care.”
In Texas, SB8 has been in effect since September, aside from a district court-ordered pause that lasted 48 hours. It bans abortions once cardiac activity is detected, usually about six weeks.
While courts have blocked other state laws effectively banning abortion before a fetus can survive outside the womb, the Texas law has so far avoided a similar fate because it leaves enforcement up to private citizens, a move that many critics have said effectively creates anti-abortion bounty hunters.
The law allows anyone, anywhere to bring a suit against anyone who helps a woman obtain an abortion, and provides a $10,000 penalty against defendants found to violate the law. Defendants cannot recoup anything if they prevail in court.
The Biden administration, in its final pitch to block Texas’s ban on most abortions, warned the supreme court that none of its decisions would be safe if it allows the Texas law to remain in force.
If the law stays in effect, “no decision of this court is safe. States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever rights they disfavor,” the administration wrote in a brief filed on Friday.
Other state-enforced bans on abortion before the point at which a fetus can survive outside the womb have been blocked by courts because they conflict with supreme court precedents.
“Texas should not obtain a different result simply by pairing its unconstitutional law with an unprecedented enforcement scheme designed to evade the traditional mechanisms for judicial review,” the administration wrote.
A day earlier, the state urged the court to leave the law in place, saying the federal government lacked the authority to file its lawsuit challenging the Texas ban.
The justice department filed suit over the law after the supreme court rejected an earlier effort by abortion providers to put the measure on hold temporarily.
In early October, US district judge Robert Pitman ruled for the administration, putting the law on hold and allowing abortions to resume. Two days later, a three-judge panel of the fifth US circuit court of appeals put the law back into effect.
Texas said it opposed the early review by the supreme court, but that if the justices agree to the Biden administration’s request, they also should use this case to directly overrule the Roe and Casey decisions.
The supreme court is already slated to hear arguably the most consequential abortion rights case in decades, a case called Dobbs v Jackson Women’s Health Organization, which challenges Mississippi’s 15-week abortion ban and will be heard on 1 December.
The Dobbs case is seen as a direct challenge to Roe v Wade, the landmark 1973 case that legalized abortion nationally to the point a fetus can survive outside the womb, generally regarded at 24 weeks gestation. The decision has protected the right to terminate a pregnancy for nearly five decades, including in hostile states which have worked zealously to, once more, make the procedure illegal within their borders.