Texas abortion ban stays in force as justices mull outcome
Washington — More than two weeks have passed since the Supreme Court's extraordinarily rushed arguments over Texas' unique abortion law without any word from the justices.
They raised expectations of quick action by putting the case on a rarely used fast track. And yet, to date, the court's silence means that women cannot get an abortion in Texas, the second-largest state, after about six weeks of pregnancy.
That's before some women know they're pregnant and long before high court rulings dating to 1973 that allow states to ban abortion.
There has been no signal on when the court might act and no formal timetable for reaching a decision.
The law has been in effect since Sept. 1 and the court has been unable to muster five votes to stop it, said Mary Ziegler, a legal historian at Florida State University's law school. “While there is some sense of urgency, some justices had more of a sense of urgency than others,” Ziegler said.
Meanwhile, the justices are two weeks away from hearing arguments in another abortion case with potentially huge implications for abortion rights in the United States.
The court will take up Mississippi's call to overrule the two major Supreme Court rulings that, starting in 1973, have guaranteed a woman's right to an abortion. The state law at issue bans abortions after 15 weeks, well before the point at which a fetus can survive outside the womb.
Viability, typically around 24 weeks, has been the dividing line: Before it, states can regulate but not ban abortion.
Even before the justices decide what to do about Mississippi's law and the fate of Roe v. Wade and Planned Parenthood v. Casey, Texas' law has effectively changed the standard at least for the time being.
It bans abortion after cardiac activity is detected in the fetus, usually around six weeks, and deputizes ordinary citizens to enforce the law in place of state officials who normally would do so.
The law authorizes lawsuits against clinics, doctors and anyone who “aids or abets” an abortion that is not permitted by law.
It was designed to make federal court challenges difficult, if not impossible. Federal courts have had no trouble preventing other bans on abortion early in pregnancy from taking effect when they have relied on traditional enforcement.
The Texas law is doing what its authors intended. In its first month of operation, a study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% compared with September 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Evaluation Project.
Texas residents who left the state seeking an abortion also have had to travel well beyond neighboring states, where clinics cannot keep up with the increase in patients from Texas, according to a separate study by the Guttmacher Institute.
The Supreme Court is weighing complex issues in two challenges brought by abortion providers in Texas and the Biden administration. Those issues include who, if anyone, can sue over the law in federal court, the typical route for challenges to abortion restrictions, and whom to target with a court order that ostensibly tries to block the law.
Under Supreme Court precedents, it’s not clear whether a federal court can restrain the actions of state court judges who would hear suits filed against abortion providers, court clerks who would be charged with accepting the filings or anyone who might some day want to sue.
People who sue typically have to target others who already have caused them harm, not those who might one day do so and not court officials who are just doing their jobs by docketing and adjudicating the cases.
The justices' history with the Texas law goes back to early September when, by a 5-4 vote, they declined to stop it from taking effect.
At the time, five conservative justices, including the three appointees of President Donald Trump, voted to let the law take effect. Chief Justice John Roberts joined the court's three liberals in dissent.
The abortion providers had brought the issue to the court on an emergency basis. After they were rebuffed, the Justice Department stepped in with a suit of its own.
U.S. District Judge Robert Pitman granted the Justice Department's request for an order that put the law on hold. Pitman wrote in a 113-page ruling that the law denied women in Texas their constitutional right to an abortion and he rejected the state's arguments that federal courts shouldn't intervene.
But just two days later, the 5th U.S. Circuit Court of Appeals overrode Pitman and allowed the law to go back into effect.
The Justice Department made its own emergency appeal to the Supreme Court. Rather than rule on that appeal, the court decided to hear the two suits just 10 days later and without the benefit of an appellate court decision.
At the arguments, two Trump appointees appeared to have doubts about the Texas law. Justices Amy Coney Barrett and Brett Kavanaugh questioned whether the law allowed people who are sued to air their constitutional claims in court and whether it would lead to a spate of copycat laws on abortion and other rights protected by the Constitution.
The court seemed particularly concerned about the “chilling effect” similar laws would produce on other constitutional rights, including speech, religion and gun possession, said Sarah Parshall Perry, a legal fellow at the Heritage Foundation.
The court's intervention has few counterparts in recent history, and those include Bush v. Gore, the fight over publication of the government's secret history of the Vietnam War known as the Pentagon Papers, and Richard Nixon's effort to keep from handing over the Watergate tapes that ultimately doomed his presidency.
The justices have never said why they opted to hear the Texas cases so quickly or how soon they might be decided.
The time since the arguments is less than a blink of an eye in high-court terms, where months typically elapse between arguments and a decision. But the justices themselves created the expectation that they would move quickly.
“This is obviously important, but there's not a presidential election deadline looming,” Ziegler said. “Even by Thanksgiving would be extraordinarily fast.”
One possibility is that the court intends to issue a decision before the Mississippi abortion law arguments on Dec. 1.
But Perry said she thinks the court could hold off deciding the Texas case until after it hands down its abortion decision, probably in late June. That would leave the Texas ban in effect.
There's much more that also might only become clear once a decision comes down.
If the court rules in favor of abortion providers or the Justice Department, will there be an accompanying order that blocks the law? That would be the quickest way to allow abortions after six weeks to resume. Justice Elena Kagan raised the prospect of an order during the arguments.
Will there be a majority opinion that speaks for at least five justices or will the court be fractured so that there are at least five for a particular outcome, but for varying reasons? Either side would be happy with five votes, but a majority opinion carries more force.
How many justices will write separate opinions, on either side? A proliferation of opinions can slow the process, as the justices circulate, comment on and revise opinions in their internal deliberations.
This story was first published on November 18, 2021. It was updated on November 19, 2021 to correct name of Heritage Foundation legal fellow. She is Sarah Parshall Perry, not Sarah Marshall Perry.