Supreme Court hears arguments on the restrictive Texas abortion law

Nov. 1, 2021, 4:30 AM EDT
By Pete Williams
WASHINGTON — The Supreme Court on Monday takes up two challenges to the nation’s most restrictive abortion law: the Texas measure that has all but stopped abortions in the state.

The court’s decision to consider the issue on an unusually accelerated schedule ramps up the drama over abortion, as the justices prepare to hear an even more consequential case a month from now. On Dec. 1, Mississippi will urge the court to overrule Roe v. Wade and declare that there is no constitutional right to abortion.

The cases Monday involve two challenges to the structure of the Texas law, which bans abortion after doctors can detect a fetal heartbeat, about six weeks into a pregnancy. The law, known as S.B. 8, was designed to make it hard to challenge in court. The proceedings begin at 10 a.m. ET.

Because the Supreme Court has ruled that states cannot ban abortion before the age of fetal viability, around 24 weeks, Texas officials could not enforce the ban themselves. So the law delegates enforcement, allowing any private individual to sue anyone who carries out or aids in an abortion.

Those suing can collect at least $10,000, potentially subjecting abortion providers to the prospect of repeated and ruinous lawsuits.

The justices must decide whether abortion providers in Texas and the Justice Department have the legal right to challenge the law in court and to seek orders banning state court clerks and judges from doing anything in response to the lawsuits.

Acting U.S. Solicitor General Brian Fletcher told the court in his written briefs that Texas must not be allowed to nullify the Supreme Court’s abortion precedents. “If Texas is right, no decision of this court is safe.”

He said the Justice Department has the authority to challenge a law that seeks to deny a right guaranteed by the Constitution. If Texas prevails, any state “may simply outlaw the exercise of whatever constitutional rights they disfavor.”