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New type of abortion case in Texas is back on the Supreme Court – Houston Public Media


A police officer walks by during a voting rally in front of the U.S. Supreme Court on Thursday, October 28, 2021 in Washington.

Hear the arguments live starting at 10 a.m. ET.

The right to abortion will take center stage in the U.S. Supreme Court on Monday, but not as most people expected. The focus will not be on abortion rights per se, but on controversial Texas law designed to prevent legal challenges.

The question is whether a state can override a constitutional right – in this case the right to abortion – by delegating enforcement not to state officials but to individuals empowered to sue abortion providers and anyone else who does support or support an abortion.

This is the second time the novel Texas law has come to court. In a midnight ruling two months ago, the court approved the law against the protests of the three liberals of the court and its conservative chairman John Roberts by a 5: 4 vote. The Chief Justice called the law “unprecedented” because it outsourced enforcement to “the general public” in order to “isolate” the state from being held accountable for a seemingly unconstitutional law.

The effects of the law

In fact, those who drafted the law boasted of how it was designed to avoid review by the federal courts. Jonathan Mitchell, the former Texas attorney general who devised the concept that “prevented the judiciary from stopping the law,” claims that states “have every privilege to adopt interpretations of the Constitution that differ from those of the Supreme Court” .

In particular, Texas law, known as SB 8, prohibits abortions after 6 weeks, when many women are unaware that they are pregnant. There are no exceptions for rape or incest, and there is only one limited and ill-defined exception for a “medical emergency”. Most importantly, the enforcement mechanism of the law is that anyone who sponsors an abortion can be sued for at least $ 10,000 by any private individual.

As a result, abortions in Texas have virtually stalled.

“The government’s move worked. The effects are catastrophic, ”said Amy Hagstrom Miller, president and CEO of Whole Women’s Health, which operates four clinics in Texas.

The legal arguments at stake

Now the case is back in the Supreme Court, which accelerated the briefing and reasoning even faster than the trial of then-President Richard Nixon at the height of the Watergate scandal in 1974.

Yet a majority in the court has retained Texan law even when challenged as unconstitutional.

It’s a tricky and complicated procedural case that starts with this problem: If the federal government is right and the state of Texas wrongly overrides a constitutional right, who would the court prescribe – what actions would a federal court order prohibit? A federal judge briefly ordered state judges and clerks not to accept any of the state law-approved lawsuits, but legal process expert Howard Wasserman says this is “unheard of.” That was “never done before”.

And that’s why, he explains, the clinic’s challenge failed straight away. But now the federal government has intervened, claiming that the constitution gives it the power to go to court to enforce a constitutional right. a right to abortion that has been established and upheld for nearly half a century.

The government claims it has an interest that supersedes state interests. namely, to protect the supremacy of the constitution and prevent the state from overriding the constitutional decisions of the Supreme Court. In addition, the government claims it has the legal power to intervene as Texas law disrupts federal employees, contractors, and programs that are mandated under federal law to facilitate and pay for abortions.

The outlook for the government

Wasserman, a law professor at Florida International University, sees the federal government as having a good chance of getting through.

“I think the court will say the government can bring this lawsuit and it might be informed by the fact that this law is so obviously invalid under the existing precedent,” he said.

That’s the catch, says Harvard law professor Stephen Sachs, who doubts the new conservative super-majority will uphold the court’s key abortion precedents, Roe v. Wade and Planned Parenthood v. Casey. “It is not at all clear whether the Supreme Court would agree to these cases being properly resolved,” he notes. “You could say they were so wrongly decided that they have to be overruled.”

And that’s why abortion providers in Texas have closed their clinics. Because if Sachs is right and Texan clinics continue to perform abortions that are later found to be unconstitutional, the clinics and their staff could be held liable for millions, even billions of dollars.

After all, there is an entirely different view of these cases, argues Sachs.

“For those who think Roe was seriously wrongly decided, there is also the consideration that any abortion that does not take place is a life saved,” he says. “And so it’s less clear that they’d agree that the only people who are hurt here are prevented from having abortions.”

More abortion challenges on the horizon

Indeed, this is clearly a turning point for the court on abortion and likely a moment of transition.

But as Professor Mary Ziegler, author of Abortion and the Law in America, notes, this is not the scenario likely even the most hostile judges in the court have envisioned.

“I think the Texas case kind of fell into the laps of the judges. It wasn’t necessarily that the conservative judges wanted to rethink Roe. It has a lot of strange aspects, ”she notes.

“It doesn’t focus on viability, which people have long viewed as a weakness of the original Roe / Casey framework,” she adds, noting that it “makes more sense” [the justices] clearing the decks on SB 8 and then talking about abortion – probably the way they had wanted all along – which happened through the Dobbs case. “

The Dobbs case, which has long been slated for this term in office, tests Mississippi’s law banning abortion after 15 weeks and is scheduled for a hearing on Dec. 1. It’s a classic challenge for Roe v. Wade, since a ban on abortions after 15 weeks directly contradicts the legal framework of the court in Roe, namely that a woman has the right to terminate a pregnancy before the fetus is viable â ???? Can survive outside the uterus, usually 22 to 24 weeks.

In the meantime, what is the court doing with Texas law?

How the case is handled could be a “very big deal” as it could have a big impact on other rights that could be circumvented in a similar way, says Ziegler. “Can you do that with guns? Is that possible with religious freedom? Is that possible with freedom of expression? Can you do that with birth control? “

This possibility, for example, is why an arms rights group – the Firearms Policy Coalition – has submitted a brief that essentially sided with the abortion providers in the Texas case.

However, Ziegler thinks it is more likely that there will be a fifth vote to hit the Texas case and focus again on Dobbs, the Mississippi case. One option “that might be attractive to the court,” she says, would be to use the Texas case “as a political cover” for everything it will do in the Mississippi case.

That would allow judges to essentially say, “We are uncomfortable with SB 8 or we think the Justice Department can provide that challenge.” In other words, something “that makes them appear less partisan as they are very were careful to appear partial ”.

However, that would require one of the five judges who voted twice not to block Texan law to give in, at least temporarily.

In the end, of course, nobody knows what the court will do. Figuring out what’s going on behind the scenes at the Marble Palace is a bit like Kremlin.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

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