With everyone focused on the Mississippi abortion law that was argued on December 1, 2021, the other big abortion case in the U.S. Supreme Court has fallen off the media radar despite being argued on November 1, 2021.
That case involved the Texas Fetal Heartbeat Law, which was a consolidation of two cases:
Docket for 21-588
Title:United States, Petitioner v. Texas, et al.
Docket for 21-463
Title:Whole Woman’s Health, et al., Petitioners v. Austin Reeve Jackson, Judge, District Court of Texas, 114th District, et al.
SCOTUS agreed to treat the case as “expedited” on its docket.
We covered the oral argument in Supreme Court Hears Argument On Texas Fetal Heartbeat Law:
The U.S. Supreme Court is hearing oral argument today in two cases challenging the Texas fetal heartbeat law. The law bans abortion after a fetal heartbeat is detected, but leaves enforcement to private lawsuits. The lack of government enforcement power previously caused SCOTUS to refuse to hear the case.See this post for background on how we got here, Texas Fetal Heartbeat Law Still Beats, Supreme Court Leaves In Place But Agrees To Expedited Review….One thing not discussed during argument, whether the law violated federal abortion law. That specific issue wasn’t on the docket, rather the main issue was whether federal courts could enjoin state court clerks from accepting filings of lawsuits under the statute, since federal courts cannot enjoin state courts.My quick take is that the Justices will find that federal courts have the power to enjoin the law, likely by enjoining the clerks from filing and processing lawsuit. It’s not that anything specific was said, but the entirety of the argument was that the law was designed to evade federal court review through the unique private enforcement mechanism while at the same time achieving the result as if the state were empowered to enforce the law. I think it will be close, but that’s my feeling.BTW, Texas Solicitor General Judd Stone was superb in his argument — outclassed the other lawyers by a lot. Whether it makes a difference remains to be seen.One reason for that feeling is that Kavanaugh worryied that a similar ploy could be used against other right, such as the Second Amendment, and he used the example of a state providing a private enforcement mechanism with a $1 million damage provision for anyone who sells an AR-15….
Since Roe v. Wade was not on the docket in the Texas case, unlike the Mississippi case, and because an emergency stay of the Texas law was sought, you’d think it wouldn’t take SCOTUS over a month to decide. But it has.
Maybe the decision will come tomorrow, or take longer.
Regardless, it’s not a good sign for the pro-Roe team in the Mississippi case that a majority of SCOTUS appeared to be in no rush to rule on a law that has reduced abortion procedures in Texas by half.
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