hear two challenges (very soon, 11/1)

WASHINGTON – The Supreme Court on Friday once again declined to block a Texas law banning abortion after six weeks of pregnancy but the justices agreed to hear two major challenges to the law in coming weeks that could settle the matter.

The court agreed to hear oral arguments in the cases on Nov. 1.

The Texas law has been blocked once and upheld twice by the U.S. Court of Appeals for the Fifth Circuit in a series of rulings that prompted congressional hearings and thrust abortion and the 1973 Roe v. Wade decision back into the forefront of the nation's culture wars.

Associate Justice Sonia Sotomayor criticized the court for not blocking the law while it agrees to consider the cases next month.

"For the second time, the court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas," she wrote on Friday. "For the second time, the court declines to act immediately to protect these women from grave and irreparable harm."

The Supreme Court has been juggling two lawsuits over the law, including one from the Justice Department filed in September and another by abortion providers. A 5-4 majority of the Supreme Court turned back the providers' challenge in September, allowing the Texas law to remain in effect and prompting a backlash from abortion rights supporters.

The Texas law, signed by Republican Gov. Greg Abbott in May, bans abortions when cardiac activity is detected, which can occur at six weeks. The law includes no exception for rape or incest but permits the procedure for "medical emergencies."

The Supreme Court on Monday, Oct. 18, 2021.
Opponents say the law flies in the face of the court's abortion precedents, including the constitutional right to the procedure established by Roe. A 1992 decision in Planned Parenthood v. Casey blocked states from banning abortions before a fetus can survive outside the womb, or at about 24 weeks of pregnancy. Anti-abortion advocates say those decisions were wrongly decided and have sought to undermine or even convince the high court to overrule them.

Those groups may get their wish: With conservatives holding a 6-3 advantage on the Supreme Court for the first time in decades and a blockbuster challenge to a Mississippi ban on most abortions after 15 weeks of pregnancy on the docket, advocates on both sides of the issue have questioned the court's commitment to Roe.

The Mississippi case is scheduled for oral arguments on Dec. 1.

The Supreme Court's earlier decision on the Texas law dealt not with the underlying questions of constitutionality but with whether federal courts may block enforcement of the ban while lower courts hash out the case. Much of those legal machinations have been the result of the way Texas crafted the law.

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Rather than having the state government enforce the ban, Texas incentivizes private citizens to sue anyone who helps a person get an abortion. That has had the practical effect of discouraging clinics from performing the procedure – out of fear of a lawsuit claiming a violation of the law – but making it harder for abortion rights groups to get an injunction blocking enforcement of the law before such a suit is brought.

U.S. District Judge Robert Pitman, who was 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.

A three-judge panel of the 5th Circuit stayed Pitman's ruling last week, putting the law back into effect.