The Texas fetal heartbeat law is still beating. At least until November 1, 2021, when the Supreme Court will hear oral argument focused on whether the federal government has standing to sue. Remember, lack of standing has sunk many a case, including the challenge by Texas to the election results in other states after the 2020 election.
The DOJ sought an emergency stay of the law which bans abortions once a heartbeat can be detected, but leaves enforcement to private law suits. The lack of government enforcement power previously led SCOTUS to decline to take the case, but the procedural posture has changed since then and it’s back before the court.
The Supreme Court Order today deferred ruling on the stay, and instead ordered oral argument for November 1 (emphasis added):
Consideration of the application (21A85) to vacate stay presented to Justice Alito and by him referred to the Court is deferred pending oral argument.In addition, the application is treated as a petition for a writ of certiorari before judgment, and the petition is granted limited to 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.The briefs of the parties in No. 21-588, limited to 13,000 words, are to be filed electronically on or before 5 p.m., Wednesday, October 27, 2021. Reply briefs, if any, limited to 6,000 words, are to be filed electronically on or before 5 p.m., Friday, October 29, 2021. Any amicus curiae briefs are to be filed electronically on or before 5 p.m., Wednesday, October 27, 2021. Booklet format briefs prepared in compliance with Rule 33.1 shall be submitted as soon as possible thereafter. The parties are not required to file a joint appendix.The case is set for oral argument on Monday, November 1, 2021.
Justice Sotomayor was the sole dissenter (in part):
For the second time, the Court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas. For the second time, the Court declines to act immediately to protect these women from grave and irreparable harm. The Court is right to calendar this application for argument and to grant certiorari before judgment in both this case and Whole Woman’s Health v. Jackson, No. 21–463, in recognition of the public importance of the issues these cases raise. 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. Because every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole, I dissent from the Court’s refusal to stay administratively the Fifth Circuit’s order.
The stakes are high. Texas is asking the Court not only to leave the fetal heartbeat law in place, but also to overrule Rowe v. Wade and Planned Parenthood v. Casey. Amy Howe writes at Scotusblog:
Lawyers for the state of Texas urged the Supreme Court on Thursday to leave a Texas law that imposes a near-total ban on abortions in place. “Neither the federal government nor abortion providers are entitled to demand Texas write its laws to permit them to be challenged” in federal court before they are enforced, the state told the justices. But if the court opts to review the merits of the law on an expedited basis, Texas continued, it should use the case as an opportunity to overrule the court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey, establishing the constitutional right to an abortion.
Remember when Democrats cheered Texas’ lack of “standing” in the election litigation? What goes around comes around. Maybe.
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