The Supreme Court, significantly widening its planned review of abortion rights, agreed on Friday to rule on new appeals by the Biden Administration and by Texas abortion clinics and doctors, raising challenges to a new Texas law that has halted most abortions in the state.
At the same time, however, the Court – for a second time in recent weeks – refused to block the enforcement of the Texas law. That law is the strictest in the nation, ending abortion rights at about six weeks into pregnancy – far earlier than any restriction the Supreme Court has ever before allowed.
Without revealing how all of the nine Justices voted on the Biden Administration plea to immediately stop enforcement of the state law which has been in effect for more than seven weeks, the Court said it would take a new look at that plea when it holds a hearing November 1 on the two new appeals. Justice Sonia Sotomayor voted to dissent from allowing even temporary enforcement of the law – the only Justice who took a public stand on that point. It would have taken five votes among the nine Justices to stop enforcement of the ban at this point.
The Court acted with very unusual speed in broadening its review of the latest constitutional controversy over abortion rights and regulation. It set the November 1 hearing date on the new appeals a month ahead of an already scheduled December 1 hearing on the constitutionality of a Mississippi law that ends abortion rights at about 15 weeks of pregnancy.
In the Mississippi case, the state has asked the Court to turn its case into a test of whether to overrule the Court’s basic abortion rights ruling, the 1973 decision in Roe v. Wade.
Among other developments on Friday, the Court took no action on separate pleas by the state of Texas, state officers, a county court clerk and four individuals in the state to turn the Biden Administration case into a similar test of whether to overrule the Roe decision, as well as to overrule the other most important Supreme Court ruling on abortion rights, the 1992 decision in Planned Parenthood v. Casey. There was no explanation for that inaction.
The Biden Administration and a group of Texas providers of abortion care did not wait for the outcome of the Mississippi case, moving instead for almost immediate review of their challenge to the Texas ban. The Court on Friday allowed them to go forward on an expedited basis, without waiting for lower courts to do the usual preliminary work on deciding the challenges.
The Texas law has been facing two challenges:
First, is the law unconstitutional because it seeks to undermine a constitutional right to abortion that has been protected since 1973? The ban takes effect at about six weeks of pregnancy even though the Supreme Court has made clear that no such ban can be imposed earlier than 22 to 24 weeks of pregnancy, when a state may limit abortions because, at that point, a fetus could remain alive if delivered outside the woman’s body.
Second, is the law unconstitutional because it hands over enforcement of its ban to any private person who wants to go into state court to sue an abortion clinic or doctor who plans or carries out an abortion despite the ban (or to sue anyone who aids in such a procedure)? That planned transfer of law enforcement was explicitly designed by the state legislature to prevent clinics and doctors from challenging the law in federal court by suing state officials. The law forbids state officers to enforce it.
The Biden Administration is pursuing both of those complaints, but has broadened its case against the state of Texas to include a variety of constitutional points about federal power to compel states (1) to obey the Constitution, (2) to avoid interfering with federal programs on abortion rights or federal court review of challenges to state laws, and (3) to respect the supremacy of federal law over state law.
The clinics and doctors, too, are making only the second challenge because a lower federal appeals court has barred them from making a challenge to the first point.
In granting review on Friday of the Administration’s sweeping appeal, the Court did not specifically promise to rule on the first point – that is, is the law invalid because it targets abortions after six weeks?. Instead, it framed a question that focuses on whether the national government has the power to sue the state of Texas, state officials and private citizens in the state to prevent all of them from enforcing the state ban.
If the Supreme Court were to rule that there is no such power, that almost certainly would end the Administration’s case. Even if it upholds such power, it has the option of going ahead to decide whether the federal government should win its challenge, or return that to lower courts to decide in the first instance.
The Administration is relying heavily on an 1895 Supreme Court precedent, in the case of In re Debs. That ruling allowed the federal government to go into federal court for an order to put a stop to the famous Pullman strike that shut down the nation’s railroads, interfering with the national power to protect interstate commerce.
Texas, with the support of 19 other states, is opposing the Administration challenge by relying heavily on a 1911 Supreme Court precedent, in the case of Muskrat v. United States. In that decision, the Court ruled that the federal courts do not have power to review a legal fight between two private parties, if the federal government is involved as only a bystander. The case involved a dispute over property rights of the Cherokee Indians.
The Court’s separate order on Friday, granting review of the Texas clinics and doctors appeal, was not a surprise, since that case is closely related to the Administration appeal. The clinics/doctors case puts directly before the Court the constitutionality of the scheme of private enforcement of the Texas ban. If it should strike down that ban, that might be applied in the administration case, too — provided that the Court decides to allow the federal challenge to proceed at all.