WASHINGTON (CN) — On Monday the Supreme Court will hear a consolidated and accelerated challenge to what is nearly a complete ban abortion: a Texas law banning the procedure at six weeks, about a third of the standard set in precedent that turns on the viability of the fetus, in other words its ability to survive outside the womb.
The law does not make exceptions for cases of rape or incest, and the dueling challenges that will go before the high court on Wednesday were lobbed by the U.S. Department of Justice and a group of Texas abortion providers led by Whole Woman’s Health.
Known as the Texas Heartbeat Act or Senate Bill 8, the ban took effect on Sept. 1 after a panel of the the Fifth Circuit canceled a federal judge's injunction, and after the Supreme Court declined to intervene in a 5-4 split. While the Fifth Circuit has the reputation as the country's most conservative federal appeals court, the Supreme Court became a 6-3 lock for Republicans with the replacement last year of Justice Amy Coney Barrett for the late Justice Ruth Bader Ginsburg — a composition not seen since the 1930s.
The cases before the court focus not on the constitutionality of the ban but how it is enforced. To wit, SB 8 is designed to evade judicial review by barring state officials from carrying out enforcement and instead deputizing private citizens to sue anyone who aides in an illegal abortion. Procedural issues that the justices will attempt to untangle include whether abortion providers in the Whole Woman’s Health case sued the right defendants, and whether the federal government has a cause of action to sue Texas in the other.
“The procedural issues have thwarted our ability to get to the substantive merits issues,” Marc Hearron, senior counsel at the Center for Reproductive Rights and lead counsel on Whole Women’s Health case, said during a press conference after the court announced it would fast-track arguments last week.
Jonathan Mitchell, the architect behind the law's enforcement mechanism, is set to argue his case before the high court directly. Mitchell did not respond to multiple requests for comment on the case. In his brief submitted on behalf of Texas, Mitchell argues the Justice Department can not bring a case against the Texas law because it would violate the separation of powers. He claims this responsibility would fall to Congress, which is already considering a bill that would challenge the law.
“The executive’s impatience with the progress of this bill does not allow it to sue Texas unilaterally, and neither the United States nor this Court can invoke 'equity' to create a novel cause of action that Congress has (thus far) failed to provide,” Mitchell said in his brief.
Texas asked the court to consider the validity of precedent both from Roe v. Wade, the 1973 case that first announced a woman’s constitutional right to an abortion, and the 1992 case Planned Parenthood v. Casey, which implemented the so-called "viability analysis."
“If it reaches the merits, the Court should overturn Roe and Casey and hold that SB 8 does not therefore violate the Fourteenth Amendment,” Texas Solicitor General Judd E. Stone II wrote in his brief for the case with Whole Woman's Health.
When granting certiorari, the justices made clear they would not wade into the merits, focusing only on if the federal government was allowed to sue the state, state court judges, state court clerks and other state officials to block SB 8.
Abortion advocates and attorneys representing Whole Woman’s Health meanwhile claim that SB 8 and other laws that have chipped away at abortion access over decades could nullify Roe.