On Monday Nov. 1, the United States Supreme Court will hear oral arguments relating to two cases on Texas’ six week abortion ban: the United States v. Texas and Whole Woman’s Health v. Jackson.
The fast-tracked hearing comes after Texas asked the higher court to keep Senate Bill 8 in effect while the Department of Justice asked the court to bypass further proceedings with the Texas 5th Circuit Court of Appeals who is currently overseeing the case.
The 5th Circuit initially ruled to reinstate the law after the state appealed a federal judge’s ruling to temporarily block the ban in October.
At the same time, in another lawsuit, abortion providers in the state also asked the Supreme Court to step in. According to legal experts, although the court’s decision to expedite the hearing is extremely rare, the ruling to keep the law in effect until deliberations are over is disappointing.
“What the court could have done is simply lift the stay in the Justice Departments case and allow the preliminary injunction to go back into effect and restore the status quo as courts do routinely in cases seeking this type of relief,“ said Marc Hearron, Center for Reproductive Rights senior counsel, “And instead the court allowed the law to remain in effect and set a lightning quick briefing schedule and argument.”
In a dissenting opinion, Justice Sonia Sotomayor praised the court for planning an immediate hearing, but denounced their ruling to keep the law in place.
“These circumstances are exceptional. Women seeking abortion care in Texas are entitled to relief from this Court now. Because of the Court’s failure to act today, that relief, if it comes, will be too late for many,” Sotomayor wrote.
Nevertheless, on Monday, all eyes will be on the Department of Justice, Whole Woman’s Health and the Center for Reproductive Rights as they give oral arguments against the law.
Not only does SB 8 ban abortion after six weeks, but it deputizes private citizens to sue anyone who aids and abets a pregnant person who gets an abortion. So this can include an abortion provider, nurse, family member, or even a ride share driver who takes someone to the clinic.
“52 days. That is how long we have been forced to act as agents of the state and deny hundreds of patients abortion care they need and deserve,” Amy Hagstrom Miller, president of Whole Woman’s Health said in a press conference. “Our opponents know exactly what they’re doing with this law. What toll it exacts on clinics and our staff and we know they will stop at nothing till they get their way and push abortion care out of reach entirely.”
Furthermore, Amna Dermish, regional medical director at Planned Parenthood of Greater Texas, with a shaky voice said since the law has been in effect, turning patients away has been catastrophic.
“One of my patients who I had to turn away because she was more than six weeks pregnant curled up and started crying uncontrollably,” Dermish said. “All I could do is hold her hand.”
For both cases, the SCOTUS has agreed to hear arguments relating to the jurisdictional/procedural issues instead of the constitutionality of access to an abortion or the Roe v. Wade and Casey v. Planned Parenthood precedent.
According to court documents, the question the SCOTUS is answering is whether the United States can bring suit in federal court and obtain injunctive or declaratory relief against the state, state court, judges, clerks, officials, or private parties to prohibit the ban from being enforced.
But the way the court decides on Monday can also determine the validity to an abortion and other constitutional rights according to attorneys. Notably, On Dec. 1, the court is set to hear Mississippi’s restrictive abortion law where the constitutionality of Roe v.Wade is the main argument.
“We’ve seen this incremental over decades in terms of pushing abortion out of reach trying to ban abortion and there is this concern that the Supreme Court can effectively eliminate access to abortion without explicit overturning Roe and that is something everyone should keep their eyes on,” Deputy Director of the American Civil Liberties Union Reproductive Justice Center Brigitte Amiri said.