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Speed ​​of Texas abortion cases has few High Court precedents

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Speed ​​of Texas abortion cases has few High Court precedents

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WASHINGTON (AP) – In just a handful of cases, the Supreme Court, where decorative turtles symbolize the deliberate pace of justice, has acted as swiftly as in the fight against Texas law that bans most abortions. They include some of the most famous disputes of the past 50 years.

The cases debated on Monday could indicate how the judges will rule in an even larger abortion case to be heard a month later and ask them to overturn the two landmark cases that guarantee a woman’s right to abortion, Roe v. Wade and Planned Parenthood v. Casey.

But abortion is not directly involved in Texas business. Rather, the court will decide whether abortion providers or the federal government can sue in federal court over Texas law, which has an enforcement mechanism that Chief Justice John Roberts described as ” unusual, even unprecedented ”.

The High Court has so far allowed Texas law, which effectively prohibits abortion at around six weeks pregnant, to be in effect even though it appears to conflict with the Roe and Casey decisions. These cases remain the law of the land until the Supreme Court says otherwise.

Who can sue, be sued?

Texas law prohibits abortion once heart activity is detected in the fetus, usually around six weeks old and before some women even know they are pregnant.

Federal courts have had no trouble blocking similar laws enacted elsewhere as inconsistent with Supreme Court decisions on abortion that essentially do not allow states to ban abortion before a fetus can survive in outside the womb, usually around 24 weeks.

The difference in Texas is the way the law is enforced. Rather than having state officials enforce it, as usually happens, Texas puts the power in the hands of private citizens, who can sue anyone who performs or promotes an abortion. The pregnant woman herself cannot be prosecuted.

Texas lawmakers said they designed the law this way precisely to make it difficult to challenge in federal court.

Abortion providers initially sued to block the law before it went into effect, but were turned down by a federal appeals court and, ultimately, by the Supreme Court.

The Department of Justice then intervened with a new trial. A federal judge blocked the law, agreeing with the merits of the retrial, but the appeals court put the law back in place after just 48 hours.

When the Biden administration asked the court to block the law, the judges postponed a decision but agreed to decide whether at this early stage of the legal battle the vendors or the federal government could sue in federal court to arrest. a law that the administration claims made “abortion effectively unavailable in Texas after about six weeks of pregnancy.”

The ruling on enforcement, the state and an architect of the law say in court documents, means federal courts are effectively closed to challengers of the law at this point. Questions also include who to prosecute and whether federal courts have the power to compel state judges to follow their orders.

In neither case is the constitutionality of the law directly in issue, but the motivation for both lawsuits is that the Texas ban clashes with Roe and Casey.


Texas Affairs Join Bush v. Gore, the Watergate tapes and the Pentagon documents, and a few others that were heard and decided by the judges within a tight deadline that reduced months of briefings and arguments into weeks, and in some cases, days. .

In these situations, tight deadlines loomed or the fate of a presidency was at stake.

It’s unclear why the tribunal is acting so quickly now. The judges, by a 5-4 vote, rejected an early plea to block the law before it goes into effect in September.

The Conservative majority’s paragraph opinion last month cited “new and complex” procedural issues that the court typically leaves to lower courts to resolve before intervening.

Polls conducted after the Texas abortion court vote showed a sharp drop in court approval. Around the same time, several judges argued publicly that they should not be seen as partisan politicians.

It is possible that the decision to grant a full review of the Texas cases and, presumably, to issue a reasoned opinion is intended to address these concerns.

Then the court may want the Texas cases settled before the Dec. 1 arguments in a Mississippi case that could dramatically change abortion rights in the United States.

The judges did not provide an explanation for their actions. It remains to be seen how quickly the court will render its decision.

Previous experience

Justices Clarence Thomas and Stephen Breyer are the only two judges who were members of the court during Bush v. Gore, who effectively settled the 2000 presidential election in favor of Republican George W. Bush. Thomas was in the majority and Breyer was a dissenter.

Roberts was a clerk to Judge William Rehnquist in 1981, when the court rushed to decide a case related to the release of American hostages in Iran. Faced with a delay for the United States to transfer previously stranded assets to the Iranians, the court acted in less than a month to grant, hear and decide the case. Rehnquist drafted the court opinion, which was delivered eight days after the arguments.

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