The Oklahoman

High Court lets current Texas abortion law stand

Follows request from DOJ to pause legislatio­n

- Mark Sherman

WASHINGTON – The Supreme Court is allowing the Texas law that bans most abortions to remain in place, but has agreed to hear arguments on the case in early November.

The justices said Friday they will decide whether the Justice Department and abortion providers can sue in federal court over a law that Justice Sonia Sotomayor said was “enacted in open disregard of the constituti­onal rights of women seeking abortion care in Texas.”

Answering that question will help determine whether the law should be blocked while legal challenges continue. The court is moving at an unusually fast pace that suggests it plans to make a decision quickly. Arguments are set for Nov. 1.

The court’s action leaves in place for the time being a law that clinics said has led to an 80% reduction in abortions in the nation’s second-largest state.

The justices said in their order that they were deferring action on a request from the Justice Department to put the law on hold. Sotomayor wrote that she would have blocked the law now.

“The promise of future adjudicati­on offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now,” Sotomayor wrote.

Sotomayor was the only justice to make her views clear, but it seems there were not five votes on the nine-member court to immediatel­y block the law Friday. It takes just four justices to decide to hear a case. The court first declined to block the law in September, in response to an emergency filing by the abortion providers. The vote was 5-4, with the three appointees of former President Donald Trump joining two other conservati­ves in the majority. Chief Justice John Roberts joined Sotomayor and the other two liberal justices in voting to keep the law on hold while the legal fight goes on in lower courts.

Now, though, the justices, in a rare move, have decided to weigh in before lower courts definitively decide the issues.

Kimberlyn Schwartz, a spokeswoma­n for Texas Right to Life, said she was happy the law remains in effect.

“This is a great developmen­t for the Pro-Life movement because the law will continue to save an estimated 100 babies per day, and because the justices will actually discuss whether these lawsuits are valid in the first place,” Schwartz said in a statement.

Amy Hagstrom Miller, the chief executive of Whole Woman’s Health, said Friday’s order means patients will continue to be denied care at the four Whole Woman’s Health clinics in Texas, on top of the hundreds who have been turned away.

“The legal limbo is excruciati­ng for both patients and our clinic staff,” Miller said in a statement.

The law has been in effect since September, aside from a district court-ordered pause that lasted just 48 hours, and bans abortions once cardiac activity is detected, usually about six weeks and before some women know they are pregnant. That’s well before the Supreme Court’s major abortion decisions allow states to prohibit abortion, although the court has agreed to hear an appeal from Mississipp­i asking it to overrule those decisions, in Roe v. Wade and Planned Parenthood v. Casey.

But the Texas law was written to evade early federal court review by putting enforcemen­t of it into the hands of private citizens, rather than state officials.

The focus of the high court arguments will not be on the abortion ban, but whether the Justice Department and the providers can sue and obtain a court order that effectively prevents the law from being enforced, the Supreme Court said in its brief order.

If the law stays in effect, “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,” the Biden administra­tion wrote in a brief filed earlier in the day.

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