Abortion at the Supreme Court: A road map to the cases pending over Texas' six-week ban

·6 min read
Pro-choice and anti-abortion activists gather outside the Supreme Court in October.
Pro-choice and anti-abortion activists gather outside the Supreme Court in October.

WASHINGTON – The Biden administration's effort to get the Supreme Court to block a Texas ban on abortions after six weeks of pregnancy may be the best shot reproductive rights advocates now have to halt enforcement of the controversial law.

But the high-profile case is just one row in a Rubik's Cube of lawsuits that may signal where the Supreme Court is heading on the thorny question of abortion and whether it will continue to uphold the landmark Roe v. Wade decision that established the right to the procedure nationwide.

Texas' ban has prompted a flurry of overlapping and difficult-to-follow lawsuits in different courts, any one of which could decide its fate. The justices, meanwhile, also are considering challenges to other state abortion laws that might affect the Texas case.

Signed by Republican Gov. Greg Abbott in May, Texas' law bans abortions when cardiac activity is detected, which can occur at six weeks. The law includes no exception for rape or incest. It is the ban's unusual enforcement mechanism that has so far confounded courts: Rather than criminalizing the procedure, the law gives private citizens a right to sue abortion providers – and collect damages starting at $10,000.

The Justice Department on Monday appealed a ruling from the New Orleans-based U.S. Court of Appeals for the 5th Circuit that allowed the Texas law to remain in effect – for now. The Supreme Court hours later asked Texas to respond to that appeal by Thursday, an indication it intends to move quickly to resolve the litigation.

The high court then set the same deadline for a response in another lawsuit challenging the Texas law. That appeal was filed weeks ago by abortion providers in Texas.

Here's a look at the leading legal battles over Texas' abortion ban:

Justice Department's appeal

The Biden administration stepped into the fray in early September, suing the state of Texas directly in a way the abortion providers who initially tried to block the law were barred from doing. It is the Justice Department's suit that has drawn the most attention recently, and experts say it may be the most likely vehicle to halt enforcement of the law.

U.S. District Judge Robert Pitman, nominated by President Barack Obama, temporarily blocked the Texas law on Oct. 6, asserting that the state "deliberately circumvented the traditional process" and "drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates." Texas appealed the decision a day later and a three-judge panel of the 5th Circuit blocked Pitman's order, allowing the law to take effect again.

As expected, the Justice Department appealed to the Supreme Court. Because the case is being considered on its emergency docket, it may be decided relatively quickly. It's also possible the court could move the case to its merits docket and hold oral arguments, which the Biden administration also requested on Monday.

"Abortion access is facing the greatest threat in generations," said Brigitte Amiri, deputy director of the American Civil Liberties Union's Reproductive Freedom Project. "The Supreme Court must step in to stop this abortion ban from continuing to wreak havoc in Texas and forcing people to carry pregnancies against their will."

The administration's appeal drew fire from anti-abortion groups.

"This law has already saved hundreds of lives since going into effect," said Carol Tobias, president of National Right to Life Committee. "The Biden administration's unconditional support of the abortion industry shows just how far pro-abortion Democrats will go to curry favor with abortionists and abortion supporters."

Protesters opposed to abortion demonstrate at the Supreme Court on Oct. 4, 2021.
Protesters opposed to abortion demonstrate at the Supreme Court on Oct. 4, 2021.

Abortion clinic case revived

Abortion providers in Texas filed the first lawsuit in federal court over the summer. But they faced a major setback in early September when a 5-4 majority of the Supreme Court declined to halt enforcement of the law. At the time, the court said it was not ruling on the law's constitutionality but rather on whether the clinics had sued the right defendants.

As the case continued, the groups brought their suit back to the Supreme Court on Sept. 23. This time they asked the justices to review their claim on the merits – a posture that meant the justices probably would need weeks, at least, to consider the case.

In an unusual request, the groups asked the Supreme Court to take their challenge before the 5th Circuit resolves it and to expedite that review.

There had been little movement in the appeal until Monday, when the high court requested Texas respond by Thursday midday – same as the Justice Department suit. It's not clear whether the justices may try to combine the two cases in some way when they ultimately rule.

"I don't think it's a coincidence that the response is due the same day as Texas's response in the federal government's suit," tweeted Stephen Vladeck, a professor at the University of Texas at Austin School of Law. "The Justices are clearly at least thinking about hearing all of these disputes" together.

State litigation on pause

When the Texas law took effect on Sept. 1, there was some thought the real action would play out in state court. That's where anti-abortion groups were expected to use the ban to sue clinics and others who helped people obtain the procedure. Then, the theory went, abortion providers could rely on Supreme Court precedent as a defense.

A 7-2 majority concluded in Roe v. Wade in 1973 that women have the right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester. Years later, in Planned Parenthood v. Casey, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb – roughly 24 weeks.

In recent years, several states – including Texas – have imposed bans much earlier.

Two state lawsuits got underway in late September. A man from Arkansas and another in Illinois sued a Texas doctor in two separate actions. Both told the Austin American-Statesman they supported abortion rights and were suing to overturn the law. But those cases have largely stalled while the federal litigation continues.

Both plaintiffs, Felipe Gomez and Oscar Stilley, have sought to intervene in the Justice Department lawsuit. Stilley told USA TODAY on Monday that his case is "on ice" pending the outcome of the federal litigation but could be revived if the Supreme Court rules in Texas' favor. Both men sued Dr. Alan Braid, a San Antonio physician, who announced in a Washington Post op-ed that he performed abortions in violation of the law.

An abortion rights advocate demonstrates in Jackson, Miss., on May 21.
An abortion rights advocate demonstrates in Jackson, Miss., on May 21.

Mississippi case may overlap

It's not a Texas case, but the most closely watched abortion lawsuit pending at the Supreme Court could have implications for the Lone Star State.

Mississippi officials have directly asked the justices to overturn Roe v. Wade in a case that deals with the state's ban on most abortions after 15 weeks of pregnancy. Opponents of the law have asked the justices to honor Roe and Casey.

The high court will hear arguments in the Mississippi case on Dec. 1.

By then, the justices may have already decided whether the Texas law can be enforced on a temporary basis. But the outcome of the Mississippi litigation could ultimately determine whether the Texas law is constitutional.

Contributing: Madlin Mekelburg, Austin American-Statesman

This article originally appeared on USA TODAY: Abortion: Justice Dept. case at Supreme Court one of many on Texas ban

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