This week the U.S. Supreme Court ordered Texas officials to address pending requests by abortionists and the U.S. Department of Justice (DOJ) to block the state’s Heartbeat Act prior to the issue being resolved in the lower courts. The law, which prohibits abortions after a fetal heartbeat can be detected, has been in effect since September 1, except for two days when a lower court blocked the law, only to see a federal appeals court reinstate it.
On October 18, the DOJ asked the justices to order a temporary block of the Texas law, in a request similar to the one the justices denied, 5-4, in early September in a separate case brought by abortion sellers. The DOJ also asked the justices to take the case away from the lower courts and decide the constitutional issues themselves. Texas has until Thursday, October 21, to respond.
And in that other case, Whole Woman’s Health v. Jackson, the justices also ordered Texas to respond on or before October 21 to a request from the abortion sellers who sued that state to have the high court accept the case for an appeal now, similar to what the DOJ has requested in its lawsuit.
Such requests are unusual, as the justices prefer – as a general rule – to allow cases to be developed and decided in the lower courts before they get involved. But the issue of abortion has energized these cases to the point where it seems that every few days a federal or state court somewhere is issuing an injunction against the law or an order vacating the injunction.
It’s a contentious case, and as the Supreme Court noted in its denial of the abortion sellers’ emergency request in late August to block the law from going into effect, the procedural issues involved are “complex and novel.” The reasons have to do with the unique way in which Texas drafted the Heartbeat Act, which depends upon private citizen enforcement rather than public officials getting involved.
But this is now the third time in two months that the Supreme Court has gotten involved in cases involving the Texas law. Does this latest action, where the justices have ordered Texas to respond to the arguments of the abortion sellers and the DOJ by October 21 rather than denying their requests out of hand, indicate that the court might deviate from its normal, hands-off attitude and take the cases out of the hands of the lower courts?
No one can be sure, but there’s been no indication that any of the five justices who voted in favor of keeping the Texas law in place on September 1 have suddenly changed their minds. It may well be, as legal expert Ed Whelan opines, that the DOJ’s request is merely “political theater” aimed at intimidating those five justices, and the administration has nothing new to offer.
If that’s true, the court might quickly rule – possibly in two more 5-4 decisions – to deny the requests and send both cases back to the lower courts to continue to develop. If so, it could be many months before any decisions are reached, and the cases reappear at the Supreme Court.
Texas Right to Life estimates that approximately 100 babies are saved per day that the law stays in effect.
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