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Opponents of controversial Texas abortion law seek green light for a challenge from the Supreme Court

Published: Oct. 29, 2021 at 12:57 PM CDT
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WASHINGTON (Gray DC) - Abortion access for women in Texas continues to be impacted by a state law, the Texas Heartbeat Act (S.B. 8), which effectively bans the procedure after six weeks.

On November 1, the state’s legal team will defend the law at the U.S. Supreme Court as opponents ask the court for clearance to challenge the law in lower courts.

The court will hear two cases. Experts say no matter the outcome, neither case would immediately overturn the law.

Paul Schiff Berman, the Walter S. Cox Professor of Law at George Washington University, said, “All the parties want is just the ability to challenge the constitutionality of the statute.”

The Texas Heartbeat Act effectively bans abortions after six weeks of pregnancy by allowing private citizens, not the government, to sue anybody who helps a woman receive an abortion.

Berman said, while lawyers from the U.S. Department of Justice and the American Civil Liberties Union want to challenge the law, the way the statute is written creates some confusion for the legal system, since it’s not government enforcing abortion restrictions.

“Part of the problem with this statute is it makes it difficult to figure out who is able to sue and who the proper defendants are,” said Berman. “But once that is figured out, then you can have a whole litigation to determine the constitutionality of the statute itself.”

The court is hearing arguments on an expedited basis as Texas lawyers argue that neither the U.S. DOJ nor abortion providers represented by the ACLU should have the right to challenge the law in lower federal courts.

ACLU lawyer Julia Kaye believes, if the Supreme Court opens the path for a challenge, judges in lower courts will block the law as they have done when other states passed early abortion bans.

“If we succeed in getting passed these technical hurdles, it is quite clear this law will be blocked, and the devastation and chaos the folks on the ground in Texas are facing everyday will end,” said Kaye.

The Gray Television Washington News Bureau reached out to the Texas Attorney General’s office and the U.S. Department of Justice for comment ahead of the hearing, but neither provided an interview.

If the Supreme Court rules either the U.S. DOJ or abortion providers have the right to sue over the Texas Heartbeat Law, then the legal challenge will head back to the Federal Fifth Circuit Court of Appeals. If the court sides with Texas, then the law would remain in effect. Kaye says opponents would regroup for another attempt to challenge the law.

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