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Texas Abortion Law Survives DOJ Swipe as SCOTUS Plunges In

The Supreme Court is leaving the TX law alone - but not for long.

The Supreme Court of the United States on October 22 agreed to hear oral arguments in two separate cases related to the state of Texas’s new law, known as S.B. 8, that bans most abortions. The court has set these oral arguments for November 1 and S.B. 8 will remain in place until then.

Scott D. Cosenza, Liberty Nation’s legal affairs editor, untangles the legal weeds that rapidly sprang up in Texas after Gov. Abbott signed S.B. 8 into law and explains what the Supreme Court’s decision means and what, exactly, the justices will be considering next month.

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GN: Scott, this latest order says on Nov. 1, the Supreme Court will hear oral arguments relating to two separate cases. Please explain how those two cases differ.

SC: The cases concern the same law; Texas’ new abortion ban. In one case, Whole Woman’s Health v. Jackson, the plaintiffs are a group of abortion providers and in the other, United States v. Texas, the federal government is suing the state.

GN: And after Nov. 1, what happens next in these cases? What kind of timeframe are we looking at before final opinions are issued?

SC: Graham, that’s a natural question and also a fool’s errand to predict. The Supreme Court accelerated argument on this case – a rare occurrence. That, however, adds no likelihood that they will speed up any decision on the case. My best guess is the court takes its time with this case because abortion cases are elevated in tension, import, and scrutiny. All the justices want to write well and vote well in every case. That must ramp up when they know everyone is watching.

Sonia Sotomayor

Justice Sonia Sotomayor (Photo by Leigh Vogel/Getty Images)

GN: In dissenting from the Court’s decision not to block enforcement of S.B. 8, Justice Sonia Sotomayor wrote, in part, “These [Texas] women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether.” On the face of it, it seems pretty clear which way Justice Sotomayor is going to go, but do you foresee any surprise opinions in either case?

SC: Well, I certainly don’t expect to be surprised by Justice Sotomayor’s opinion in the case. It’s refreshing when Justices don’t pretend to be impressed by legal arguments they find worthless, so we can appreciate her candour. We have many new Justices and, perhaps, a new understanding of personhood given the technological advancement and understanding of human gestation since Roe v. Wade in 1973. Pro-life activists have been hoping and praying for a reversal of Roe ever since, and now is their very best shot. They could still lose 9-0 of course, or have the case tossed on a technicality. With the Court, I find if you expect to be disappointed, you will have your expectations met.

GN: And lastly, Scott, the fear among those who support access to abortion – and the hope among those who oppose it – is that the fate of S.B. 8 in Texas will determine the future of Roe v. Wade. Is it that simple? Is Roe v. Wade dead – null and void, if you will – if this Texas abortion ban survives the Supreme Court?

SC: Graham, it all depends on the specific holding. We could have a situation where Justices agree in the result (the ban stands) but disagree why. These plurality opinions make a mess in their application and have confusing precedential value. The court could also go further than allowing the Texas ban. A majority of Justices could rule that humans are endowed with full rights prior to the third trimester. They could find that a right not to be aborted exists in fetuses nationwide, extending any ruling well past Texas. It’s fair to call that a long shot, but if they start re-writing a landmark opinion, who knows where they might end up.


Read more from Graham J. Noble and Scott D. Cosenza.

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