WASHINGTON, DC — The U.S. Supreme Court is taking up challenges Monday to a Texas law that has virtually ended abortion in the nation’s second largest state after six weeks of pregnancy.
The justices are hearing arguments in two cases over whether abortion providers or the U.S. Justice Department can mount federal court challenges to the law, which has an unusual enforcement scheme its defenders argue shield it from federal court review.
In neither case is the constitutionality of the law directly at issue, but the motivation for both lawsuits is that the Texas ban conflicts with landmark Supreme Court rulings that prevent a state from banning abortion early in pregnancy.
The Texas law has been in effect since September, except for a 48-hour period in early October when it was blocked by a lower court.
The high court jumped into the Texas cases less than two weeks ago, moving at extraordinary speed, but only after rejecting a plea to block the law by a 5-4 vote in early September.
Five conservative justices, including three who were appointed by President Donald Trump, were in the majority. Chief Justice John Roberts joined the court’s three liberal justices in dissent.
The court offered no explanation for its decision to hear the cases so quickly.
The Texas ban, signed into law by Gov. Greg Abbott in May, prohibits abortion after cardiac activity is detected in a fetus, usually around six weeks and before some women know they are pregnant.
The law makes exceptions for medical emergencies but not for rape or incest.
At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.
But rather than have state officials enforce it, the Texas law deputizes private citizens to sue anyone who performs or aids and abets an abortion. If they’re successful, they are entitled to at least $10,000. Women who obtain abortions can’t be sued under the law.
The structure of the law threatens abortion providers with huge financial penalties if they violate it. Clinics throughout the state have stopped performing abortions once cardiac activity is found.
The result, both the providers and the Biden administration said, is that women who are financially able have traveled to other states and those without the means must either continue their pregnancies against their will or find other, potentially dangerous ways to end them.
The state and Jonathan Mitchell, an architect of the law, say in their briefs that the providers and the Justice Department lack the right to go into federal court and can’t sue state judges and clerks who are not responsible for enforcing the abortion ban. They also contend that there is no effective way of blocking the law, in part because federal court can’t force state judges to abstain from hearing the lawsuits the law authorizes.
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