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Supreme Court scrutinizes controversial Texas abortion law

Published: Nov. 1, 2021 at 2:46 PM CDT
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WASHINGTON (Gray DC) - Will the U.S. Supreme Court act, and when will they do it? Those are the big questions for supporters and opponents of a Texas state law which gives private citizens the right to sue people involved in abortions taking place after six weeks.

Whether Texas’ S.B. 8, the so-called Texas Heartbeat Act, will avoid attempted legal challenges by abortion providers and the U.S. Department of Justice is now up to the U.S. Supreme Court.

The court fast-tracked two separate but related cases (Whole Women’s Health v. Jackson and United States v. Texas) to be heard Monday, and spent about three hours on them in total.

Pro-choice and pro-life advocates protested in front of the Supreme Court steps as the court heard from those who want to challenge the Texas law which effectively bans abortions six weeks after conception with no exemptions for rape or incest.

Texas Solicitor General Judd Stone defended the law in both cases. “None of the individuals sued are appropriate defendants,” Stone argued in his opening statement.

Stone argued that since the Texas law allows for private citizens to bring lawsuits, and prohibits state officials from enforcing the law, federal courts cannot block it.

At one point, Justice Brett Kavanaugh said, “as Justice Kagan points out there’s a loophole that’s been exploited here.”

U.S. Solicitor General Elizabeth Prelogar faced a series of questions from justices as to why the U.S. Department of Justice is trying to step into this case when it hasn’t in others. She said the D.O.J. is stepping, at least in part, because Texas crafted the law in an effort to box out legal challenges.

“If a state can just take this simple mechanism of taking its enforcement authority and giving it to the general public backed up with a bounty of $10 million or $100 million, if they can do that then no constitutional right it safe,” Prelogar said,

Marc Hearron, senior counsel at the Center for Reproductive Rights, argued for abortion providers to have a chance to challenge the Texas law, and spoke with reporters after oral arguments.

“It is long past time for this statute to be blocked,” Hearron said, “for the enforcement to be blocked, and to restore services across the state.”

In September, the U.S. Supreme Court allowed the Texas law to take effect with a 5-4 decision. There’s no announced timeline as to when the court will reach a final decision in this case, but opponents said they hope it’s quickly.

At least 12 other states have enacted bans early in pregnancy but all have been blocked from going into effect.

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