Supreme Court sets snap Nov. 1 hearing on Texas’ 6-week abortion ban but refuses to halt enforcement

WASHINGTON – The U.S. Supreme Court on Friday again refused to halt enforcement of Texas’ new ban on abortions after six weeks, but put the case on a fast track, setting oral arguments for Nov. 1.

Abortions in Texas have been cut to a trickle since the high court allowed the law, known as Senate Bill 8, to take effect Sept. 1.

The federal Justice Department had asked the court to freeze enforcement as challenges work through lower courts. Attorney General Merrick Garland denounced SB8 as a clear violation of five decades of Supreme Court rulings that recognize the right to abortion before a fetus is viable outside the womb — roughly 22 to 24 weeks.

The Biden administration views SB8 as an intolerable, if clever, attempt to thwart judicial review, a view shared by many legal scholars.

Instead of having the state government enforce a ban on abortions once a fetal heartbeat is detected, which would clearly violate rights the Supreme Court has recognized since 1973, the new Texas law gives private citizens the right to sue doctors or anyone else who helps a woman get such an abortion, including a friend or even an unwitting taxi driver.

Successful plaintiffs are promised awards of at least $10,000.

Only a handful of lawsuits have been filed. But clinics have stopped providing most abortions for fear of the potentially ruinous costs.

The Supreme Court has struck down six-week abortion bans before. Justices likely were intrigued to take up this case, given that it hinges on a novel mechanism to deter abortions the state could not directly outlaw. Still, abortion providers and advocates for women’s rights were disappointed that the law remains in place.

“The Supreme Court has promised for nearly 50 years that abortion is protected by our Constitution, yet today they are allowing extremists to continue depriving Texans of our rights,” said

Amy Hagstrom Miller, president & CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, an abortion provider that has challenged SB8. “This dystopian state that Texas lawmakers have imposed on us, with neighbors tattling on neighbors for helping each other out, is not what most Texans would want for their families, friends and neighbors.”

The Nov. 1 hearing will combine two cases that challenge SB8 — one filed by Whole Woman’s Health and other abortion providers, the other filed by the Justice Department.

Conservatives hope the court’s year-old 6-3 conservative majority is prepared to overturn Roe vs. Wade, the 1973 landmark that stemmed from a Dallas County woman’s challenge of a Texas law making abortion illegal.

The court did not issue an explanation for its decision to leave SB8 in place. In a dissent, liberal Justice Sonia Sotomayor castigated the majority for tacitly deciding to “suspend” Roe in Texas, prolonging a “catastrophic” impact on women.

“There is no dispute that under this Court’s precedents, women have a constitutional right to seek abortion care prior to viability,” she wrote. Yet “there are women in Texas who became pregnant on or around the day that SB8 took effect” who don’t even realize, seven weeks later, that they are pregnant, and for them, it’s already too late to “exercise their constitutional right to seek abortion care ... anywhere in their home State.”