Supreme Court agrees to review Texas’s 6-week abortion ban

The Supreme Court on Friday agreed to review Texas’s six-week abortion ban, scheduling oral arguments for Nov. 1.

The court’s move comes in response to legal challenges by the Department of Justice (DOJ) and Texas abortion providers, who have argued the restriction clearly violates the court’s 1973 decision in Roe v. Wade and subsequent rulings.

The question the court has agreed to consider concerns the ability of courts to review the Texas law in light of its unique legislative design, which critics have likened to a “bounty” system.

The law, S.B. 8, gives enforcement authority to private citizens by allowing them to file lawsuits that fetch at least $10,000 if they successfully show the defendant performed or aided and abetted an abortion in violation of the six-week ban.

In the DOJ challenge, the court will consider the following question: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?”

Justice Sonia Sotomayor, an Obama appointee, agreed with the court’s decision to review the case but indicated that she would have halted the law in the meantime.

“The Court is right to calendar this application for argument and to grant certiorari before judgment [in both cases] in recognition of the public importance of the issues these cases raise,” she wrote. “The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now.”

“These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether,” she added.

Abortion rights advocates argue Texas’s six-week ban clearly violates the constitutional right to abortion first recognized in Roe v. Wade, which prohibits states from banning abortion before a fetus is viable, typically around 24 weeks of pregnancy.

The controversial law, which bans most abortions and makes no exceptions for rape or incest, has faced legal pushback both prior to and following its Sept. 1 effective date, when the conservative majority Supreme Court declined to block it.

The court’s Sept. 1 move came in a 5-4 vote that broke largely along familiar ideological lines, with the exception of Chief Justice John Roberts, who joined the court’s three more liberal justices in dissent.

The ruling drew nationwide furor and appeared to contribute to a sharp drop-off in the court’s approval rating and fuel the perception, held by a majority of the public, that the court bases its rulings more on politics than law.

Since then, legal challenges by the DOJ and Texas-based abortion providers have percolated back up to the justices.

The DOJ announced it would seek the Supreme Court’s intervention on Oct. 15, just hours after a New Orleans-based federal appeals court ruled that the statute can remain in effect while it weighs the Biden administration’s legal challenge.

The justices’ move Friday also granted review to the abortion providers who were rebuffed by the court in last month’s 5-4 ruling. Their case will also be heard Nov. 1.

These latest developments come as the court prepares to hear arguments in December over Mississippi’s 15-week abortion ban, which poses a direct challenge to Roe v. Wade.

Updated at 1:15 p.m.