WASHINGTON — The Supreme Court on Friday accelerated the country's debate over reproductive rights, leaving in place Texas' most-restrictive-in-the-nation abortion law but scheduling a hearing in just 10 days to consider its future.
The court granted an expedited review of what is called S.B. 8, and juggled its docket to hear arguments Nov. 1. The Biden administration in a filing Friday said the law "has virtually eliminated abortion in Texas after six weeks of pregnancy."
The court's action sets up a momentous term for abortion rights. The justices on Dec. 1 will consider a Mississippi law that bans most abortions after 15 weeks, far earlier than the court's precedents currently allow.
Abortion opponents have urged the court to use that case to loosen precedents that say states may not prohibit abortion before fetal viability, generally thought to be around 22 to 24 weeks.
Mississippi's state government and abortion opponents have asked the court to use the case to overturn Roe v. Wade and Planned Parenthood v. Casey, which first established a constitutional right to abortion in 1973 and reaffirmed it in 1992, respectively.
The court skirted a similar request in the Texas case. Instead, the court will focus on the law's unique enforcement policy, which authorizes individual citizens to sue anyone who helps a woman obtain an abortion after cardiac activity is noted in the embryo, as early as about six weeks.
The Texas law was designed to prevent judicial intervention to stop it before it could take effect. The court accepted two cases to determine whether the United States or abortion providers and doctors may bring suit in federal court to prevent S.B. 8 from being enforced.
Friday's decision to keep the law in place but put the cases on a fast-track seemed to be a compromise worked out in advance. Because it involves a procedural matter on how to challenge the law, rather than the law's merits, a resolution could be reached more quickly compared with other cases the court hears.
Justice Sonia Sotomayor was the lone dissenter Friday. She agreed the court should expedite review of the law, but said it should have blocked it until the case is decided. She was also on the losing side in the court's 5-to-4 order allowing the law to go into effect Sept. 1.
"Women seeking abortion care in Texas are entitled to relief from this Court now," Sotomayor wrote. "Because of the Court's failure to act today, that relief, if it comes, will be too late for many."
She said to consider those who became pregnant the day the law went into effect.
"As I write these words, some of those women do not know they are pregnant. When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State."
The schedule is extraordinary for the Supreme Court, which normally allows months between accepting a case and scheduling it for argument. John Elwood, a Washington lawyer who closely tracks the court's docket, tweeted that it was the "most expedited briefing & argument since Bush v. Gore," after the contested 2000 presidential election.
So #SCOTUS denied (for now) motion to vacate, but (as SG asked) construed as a cert petition & granted review, ordering most expedited briefing & argument since Bush v. Gore. Didn't (yet) grant Texas's request to consider whether to overrule Roe/Casey. What to make of that? https://t.co/k9U3nah3xX pic.twitter.com/ypeGKlciBT— John Elwood (@johnpelwood) October 22, 2021
Reaction from the political left and abortion advocates was laced with anger that the court for a second time had turned down a chance to stop the law while the legal battle continued.
"Texans deserved better than this. The legal limbo is excruciating for both patients and our clinic staff," said Amy Hagstrom Miller, chief executive of Whole Woman's Health, which operates four clinics in Texas. "We've had to turn hundreds of patients away since this ban took effect, and this ruling means we'll have to keep denying patients."
Patients who are able to leave Texas have been seeking abortion care in New Mexico, Oklahoma and other surrounding states, where clinics have been booked solid as they try to meet the increased demand.
Clinics in Texas are still providing abortions before cardiac activity is detected, around the six-week mark. While two outposts of Planned Parenthood, in Waco and in San Antonio, stopped performing abortions entirely when S.B. 8 took effect, they recently resumed such services.
Kimberlyn Schwartz, director of media and communications for Texas Right to Life, said the court's decision to leave the law in place for now "will continue to save an estimated 100 babies per day."
The law's structure has so far frustrated challengers. Usually, abortion providers sue to stop government officials from enforcing laws that violate constitutional protections. But the Texas law leaves enforcement to private individuals, which the federal government has likened to a "bounty hunter" scheme.
Any individual can sue anyone who helps a woman get a prohibited abortion. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint.
Because they could not sue everyone who might choose to file such a claim, the doctors and clinics brought suit against some individuals to keep them from filing such actions, and against state judges and clerks to keep them from accepting the suits.
When the Supreme Court considered the abortion providers' request to keep the Texas law from going into effect, the majority's one-paragraph opinion cited the law's "complex and novel" procedural questions and said it was not clear that abortion providers challenging the law were suing the proper defendants.
"Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves," the majority wrote in allowing the law to go into effect. Those justices - Clarence Thomas, Samuel Alito Jr. and President Donald Trump's three nominees, Neil M. Gorsuch, Brett Kavanaugh and Amy Coney Barrett - added that the law presented "serious" constitutional questions.
The court's three liberals - Sotomayor and Justices Stephen Breyer and Elena Kagan - said it was clear to them the law was, in Sotomayor's words, "flagrantly unconstitutional."
She wrote that presented with a law "engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand."
Chief Justice John Roberts Jr. provided a fourth vote for blocking the law, saying it required additional judicial scrutiny.
"The statutory scheme before the court is not only unusual, but unprecedented," he wrote. He would have allowed more time for courts to consider "whether a state can avoid responsibility for its laws in such a manner."
After the suit brought by abortion providers was turned away, the Justice Department got involved, suing the state of Texas on behalf of those who it said were being denied their constitutional rights.
A federal district judge agreed with the government. U.S. District Judge Robert Pitman halted the law, writing, "This court will not sanction one more day of this offensive deprivation of such an important right."
Two days later, however, a panel of the U.S. Court of Appeals for the 5th Circuit overruled him and reinstated the law. It said it would consider the merits of the law in December.
But the abortion providers and the Justice Department asked the Supreme Court not to wait for the 5th Circuit to weigh in.
If the law stays in effect, "no decision of this Court is safe," wrote Acting Solicitor General Brian Fletcher. "States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever rights they disfavor."
Texas Attorney General Ken Paxton, a Republican, said the court should stay out of it for now and that challenges to the law should move through state courts.
"Federal courts are not 'roving commissions assigned to pass judgment on the validity of the Nation's laws,' " said Paxton's filing, quoting a 1973 Supreme Court decision. "Neither is the Department of Justice."
In the case brought by the Justice Department, U.S. v. Texas, the court said it will consider whether the government can sue in federal court to "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."
In Whole Women's Health v. Jackson, challengers asked whether "a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions."
Briefs from all sides are due Wednesday.
One explanation for the decision to move quickly is that the court has come under increasing criticism for deciding important issues on cases that come to them on an emergency basis, such as the Biden administration's request to halt the Texas law.
Alito, speaking recently at the University of Notre Dame, defended the court's actions in what has been dubbed the "shadow docket." But this makes the second time this fall - a death penalty case was the other instance - that the court has taken up an emergency request and scheduled it for full, if accelerated, briefing and hearing.