WASHINGTON — The Supreme Court said Friday it will leave the Texas abortion law in place for now but take up legal challenges over the statute in a pair of courtroom arguments Nov. 1.
The court said it will defer action on the Biden administration's request to put the law on hold while the justices take up the appeals. As a practical matter, that means the Texas law known as Senate Bill 8 will very likely remain in effect for several more months while the court considers its fate.
The court also said it would hear arguments 10 days from now on the separate question of whether the federal government has the authority to challenge the unusual law, and whether an injunction to block its enforcement can apply to state court judges.
Justice Sonia Sotomayor said the Supreme Court should have put the Texas law on hold while considering these issues. "The promise of future adjudication offers cold comfort,” she wrote Friday, “for Texas women seeking abortion care, who are entitled to relief now."
The court acted with uncharacteristic speed by scheduling arguments in the cases for Nov. 1. But decisions likely won't follow for several months. And on Dec. 1, the court will hear the biggest abortion case of the term, Mississippi's direct challenge to Roe v. Wade.
Tom Goldstein, a Washington, D.C., lawyer who argues frequently before the court and publishes the SCOTUSblog website, said the justices acted quickly "to bring all of the controversies in front of them at once to try to bring some clarity. It was just too much of a mess, and the Texas case is too important to just leave hanging out there."
The Supreme Court's decision to defer action on SB 8 comes a day after Texas urged the high court to deny the federal government’s request to block its enforcement.
The Texas law, unlike every other abortion restriction to come before the Supreme Court, does not depend on state officials to enforce it. Instead, anyone can file a private lawsuit against an abortion provider and seek up to $10,000.
The law took effect in September and bans abortions as early as six weeks of pregnancy, before most women know they are even pregnant. It has stopped nearly all abortions in the state, forcing women seeking treatment to travel to other states.
Texas has "successfully nullified" the Supreme Court's past decisions on abortion within the state's borders, the Justice Department told the court Friday in urging it to immediately block SB 8.
"If Texas is right, no decision of this court is safe. States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever rights they disfavor; disclaim state enforcement; and delegate to the general public the authority to bring harassing actions threatening ruinous liability," the government said.
U.S. District Court Judge Robert Pitman for the Western District of Texas blocked enforcement of the law in early October, saying that the state was carrying out "an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” But the U.S. Court of Appeals for the Fifth Circuit put a hold on his ruling, which allowed SB 8 to go back into effect.
Goldstein said he expects a middle-ground outcome of the cases, with the court striking down the stringent Texas law but upholding the Mississippi statute without overturning Roe v Wade.
Decisions in the cases are unlikely to be issued before spring.