The speed of abortion cases in Texas has little precedent in the High Court

WASHINGTON (AP) – The Supreme Court, where ornamental turtles symbolize the deliberate speed of justice, has moved in only a few cases as quickly as in the fight for Texas law, which bans most abortions. They include some of the most famous disputes of the last 50 years.

The cases being heard on Monday could indicate how judges will decide in an even bigger abortion case to be heard a month later, and calls on them to set aside two important cases guaranteeing women’s rights to abortion, Roe v. Wade and Planned parenting v. Casey.

But in Texas cases, abortion is not directly controversial. Instead, the court will decide whether abortion practitioners or the federal government can sue in federal court over a law in Texas that has an enforcement mechanism that Chief Justice John Roberts described as “unusual, if not unprecedented.”

The High Court has so far allowed the validity of a Texas law that effectively prohibits abortion at about six weeks gestation, although it appears to be contrary to the Roe and Casey decisions. These cases remain state law until the Supreme Court decides otherwise.

Who can sue, is he sued?

Texas law prohibits abortion when heart activity is detected in the fetus, usually about six weeks and before some women even know they are pregnant.

Federal courts have easily blocked similar laws passed elsewhere as inconsistent with Supreme Court abortion decisions, which essentially do not allow states to ban abortion before the fetus can survive outside the womb, usually for about 24 weeks.

The difference in Texas is the way the law is enforced. Instead of allowing government officials to enforce this, as is usually the case, Texas leaves power in the hands of private individuals who can sue anyone who performs or promotes abortion. The pregnant woman herself cannot be sued.

Texas lawmakers said they drafted the law in this way precisely because it would be difficult to challenge it in federal court.

Abortion providers initially sued to block the law before it went into effect, but were rejected by the Federal Court of Appeal and eventually by the Supreme Court.

The Ministry of Justice then entered with a new lawsuit. A federal judge blocked the law and agreed with the content of the new lawsuit, but the appellate court returned the law after just 48 hours.

When the Biden administration asked the court to block the law, the judges adjourned the decision, but agreed to decide whether, at this early stage of the litigation, bidders or the federal government could sue in federal court to stop the law administered by the administration. claims that “abortion in Texas has actually become inaccessible after about six weeks of pregnancy.”

The decision to enforce, say the state and the architect of the law in the court files, means that the federal courts are in fact closed to opponents of the law at this point. Questions also include who to sue and whether federal courts have the power to force state judges to follow their orders.

By no means is the constitutionality of the law directly in dispute, but the motivation for both lawsuits is that the ban in Texas is contrary to Roe and Casey.

Express Lane

The Texas cases join the Bush v. Gore case, the Watergate and Pentagon Papers footage, and just a few others that were heard and decided by judges in a tight time frame that summed up months of meetings and arguments into weeks and in some cases days. .

In these situations, hard hands were approaching or the fate of the presidency hung in the balance.

Why the court is acting so quickly now is not clear. Judges rejected by 5 to 4 votes an early request to block the law before it went into effect in September.

The Conservative majority opinion with one paragraph last month listed “new and complex” procedural issues that a court usually leaves to lower courts to resolve before they get involved.

Polls conducted after the abortion vote in a Texas court showed a sharp drop in court approval. Around the same time, several judges publicly advocated not treating them as partisan politicians.

It is possible that the decision to grant a full review of cases in Texas and possibly issue a reasoned opinion is intended to address these concerns.

Then, too, the court may want to resolve cases in Texas before arguments on Dec. 1 in the Mississippi case, which could dramatically change abortion rights in the United States.

The judges did not offer explanations for their actions. How quickly the court will issue a decision remains to be seen.

Previous experience

Judges Clarence Thomas and Stephen Breyer are the only judges to have been members of the Bush v. Gore tribunal that actually settled the 2000 presidential election in favor of Republican George W. Bush. Thomas was part of the majority, and Breyer disagreed.

Roberts was an official with Judge William Rehnquist in 1981 when a court quickly ruled on a case involving the release of U.S. hostages in Iran. The court took action in less than a month before the deadline for the U.S. to transfer previously blocked funds to the Iranians to approve, hear and rule the case. Rehnquist wrote the court’s opinion, which was issued eight days after the quarrels.


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