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What was already shaping up to be a blockbuster Supreme Court term became even more so on Friday. Before Friday, we knew the Court was going to decide two significant issues and possibly a third this term — whether people have the right to a conceal carry permit outside their home, whether a state can ban abortion prior to viability, and possibly whether Harvard’s use of affirmative action in its admissions process violated federal law. Those cases alone presented the Court’s new 6-3 conservative majority an opportunity to stamp their right-wing legal ideology onto flashpoint issues in American politics.
Then on Friday, the Court added another case when it agreed to hear two different challenges to Texas’s SB 8 abortion law. And, recognizing the urgency of the situation, the Court announced that it would hear oral argument on November 1, just 10 days after it agreed to hear the case. This highly unusual move indicates the Court understands the stakes, but before you get your hopes up too much, all indications point to the Court allowing this radical anti-abortion law to continue.
For many, this is familiar ground at this point, but to make sure everyone’s on the same page, a quick refresher about SB 8. The law is Texas’s novel ban on abortion at six weeks of pregnancy (which is four weeks after conception, and just two weeks after someone with a regular menstrual cycle misses their period). Instead of enforcing the ban like every other abortion ban, through state law enforcement and licensing boards, Texas empowered any individual to sue a doctor who performs an abortion after 6 weeks or anyone who aids and abets the doctor. This lawsuit, which could be brought by people with no connection to the person seeking an abortion and even with no connection to Texas, can be for $10,000 or more.
Two different federal challenges to SB 8 have been filed. Texas clinics sued over the summer, but the Supreme Court, acting on September 1, the day the law took effect, refused to block it, saying that at this preliminary stage there were too many confusing procedural issues to justify stopping the law. That decision was 5-4, with Chief Justice Roberts joining the Court’s three liberals in dissent. It was not a decision on the merits of the case, but just a decision that, right now, the Court was not in a position to do anything.
The other federal lawsuit came later in September, when the United States Department of Justice filed its own lawsuit against Texas. As the plaintiff in the case, the United States can get around some of the procedural problems that the clinics face, such as being allowed to sue the state directly, and a federal judge in Texas blocked the law from going into effect earlier this month. However, the federal court of appeals that covers Texas put a hold on the lower court judge’s ruling, allowing SB 8 to continue. The United States appealed to the Supreme Court earlier this week.
Yesterday, the Court announced that it would hear both cases in full, though on a hyper-expedited basis. It scheduled oral argument for Monday, November 1. The Court’s announcement limited the questions that it would consider to the procedural issues in the cases. That means that the Court will not, at least not technically, consider whether it should overrule Roe v. Wade, something the state of Texas asked it to do in this case.
That the Court is acting so quickly to hear this case is a sign that it understands the gravity of the issues here. Usually the Court accepts a case then asks for more briefing before oral argument, a process that could take six or more months. Here, the Court is giving the parties just ten days to file their briefs and prepare for oral argument. This is possibly an indication that the Court recognizes that a law like this one could upend the entirety of our legal system. After all, if a state can get around constitutional rights protections by allowing private parties to sue to stop them (rather than the state being involved), all constitutional rights are at risk.
However, the Court’s announcement yesterday contained a clear indication that almost all of the Justices do not care about the harm that SB 8 is causing in Texas. The Court could have put SB 8 on hold while it considers the legal issues it presents – as it sometimes does with laws while challenges proceed in the courts – but only Justice Sonia Sotomayor indicated she would do so. She wrote an impassioned dissent setting forth the serious ways that SB 8 has harmed patients and abortion clinics in Texas in the almost two months it has been in effect. But this was a solo dissent. It was very notable that the other three Justices who dissented from the Court’s refusal to stop SB 8 on September 1 did not join her, not even the other two liberals on the Court.
There could be strategic reasons why they didn’t — maybe they thought it put them in a better position to negotiate and compromise once the case is fully heard. However, by allowing SB 8 to continue while this case is being decided, the Court allows SB 8’s harm to continue as well. Would the Justices allow the harm to proceed with a law that banned guns or religious education? If you believe they would, you clearly aren’t paying attention to the messages this ultra-conservative Court has been sending.
Whatever the Court does with SB 8 in November (or whenever it gets around to deciding the case, since it could take its time doing so), the fact that it has shown complete disregard — so far — for the rights of people in Texas seeking abortions does not bode well for the other abortion case the Court will hear in December. In that case, the Court has an opportunity to overturn Roe outright. Given how the Court has treated SB 8, all signs point to the right to abortion being thrown to the dustbin come next summer. These Justices simply don’t think it’s a right worth protecting.