In two separate orders issued on October 22, the United States Supreme Court has agreed to hear the appeals from the U.S. Department of Justice (DOJ) and abortion sellers challenging the Texas Heartbeat Act, which prohibits abortion once a fetal heartbeat can be detected. Oral arguments are now scheduled for November 1, a month before the high court is scheduled to hear arguments in Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s 15-week abortion ban.
The action taken by the justices is unusual, in that the Texas law has only recently been challenged in the lower federal courts, and no ultimate decisions have been reached in those, which typically triggers an appeal to the high court.
But nothing about the Texas case has proven typical, as the Supreme Court has already denied one emergency request from the abortion sellers to block the heartbeat law while the case advances. In both cases, the DOJ and the abortion sellers asked the high court to accept the case for a hearing now, even before any judgments are reached in the lower courts.
The court’s order in the case brought by the DOJ – United States v. Texas – limits the scope of the argument on November 1 to the following question: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?” That issue involves complicated nuances of federal case law that the justices will have to sort through.
Interestingly, the order deferred any consideration of temporarily blocking the Texas law until the November 1 hearing. Justice Sonia Sotomayor dissented from the decision to defer.
“The Court is right to calendar this application for argument and to grant certiorari [i.e., a review] before judgment in both this case and Whole Woman’s Health v. Jackson, No. 21–463, in recognition of the public importance of the issues these cases raise,” Sotomayor wrote.
“The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now. These 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. Because every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent from the Court’s refusal to stay administratively the Fifth Circuit’s order.”
Curiously, no other justice joined in Sotomayor’s dissent.
The court limited the size of written briefs to be filed prior to oral argument, with the last briefs due on October 29. It also turned down Texas’ request that the justices use the case to decide whether to overturn Roe v. Wade and Planned Parenthood v. Casey. That question is already before the justices in the Dobbs case that will be heard on December 1.
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