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Supreme Court to hear first of two abortion right appeals, with arguments Monday over Texas six-week ban

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Supreme Court to hear first of two abortion right appeals, with arguments Monday over Texas six-week ban

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The United States Supreme Court will begin the first chapter of an abortion legal saga on Monday that could see the right to process nationwide severely curtailed in the months to come.

It will mark a new legal take on an issue of social division, with a conservative 6-3 high court majority ready for a politically charged decision.

Over the next month, judges will hear separate challenges to abortion access restrictions enacted by Mississippi – with its ban after 15 weeks pregnant – and Texas – with a more restrictive six-week ban.

The Texas dispute will be heard first, in two hours of oral argument on Monday, which will be more procedural in nature and likely won’t answer the key question of whether state law restrictions on most abortions are. constitutional.

This high-stakes debate will take place on December 1, when Mississippi law is debated before all nine judges. The state wants key Supreme Court precedents allowing abortions – known as Roe (1973) and Casey (1992) – to be overturned.

AUSTIN, TX – SEPT 1: Pro-choice protesters march past the Texas State Capitol on Wednesday, September 1, 2021 in Austin, TX. Texas passed SB8 which bans virtually all abortions and came into effect on September 1. A request to the Supreme Court to block the bill has gone unanswered and the court has yet to take action on it. (Sergio Flores for The Washington Post via Getty Images)
(Sergio Flores for The Washington Post via Getty Images)


The desirability of a radical pivot on abortion – at a time when the reputation and legitimacy of the High Court is under threat – could be tempered by an unpredictable and cautious court that has shown it is not always willing to express themselves along clear ideological lines. This can produce shared decisions, with uncertain lasting impact.

“I’m sure the Chief Justice would prefer to take it slow enough. That’s usually his inclination in these situations,” said Paul Smith, Georgetown University law professor and appeals lawyer who has often appeared before. the judges. “But there will be judges who will be anxious to get to the final determination of Roe’s validity. I could imagine a situation where you have three Liberals saying these should be confirmed; three saying we haven’t. still need to address this issue; and three saying this should obviously be canceled. “

Besides Chief Justice John Roberts, much of the argument will focus on two of former President Donald Trump’s choices: Justices Brett Kavanaugh and Amy Coney Barrett. Their questioning of counsel could indicate whether a compromise approach is possible.

Texas in two steps

Texas law known as SB 8 would ban most abortions at around six weeks, when a fetal heartbeat can be detected.

For now, the high court will keep the law in effect while legal challenges continue in lower courts. Most of Texas’ roughly two dozen abortion clinics say they have turned down patients, forcing some women to leave the state for the procedure or reluctantly continue their pregnancies.

GOP Governor Greg Abbott enacted it this spring, and although he allows abortions for “medical emergencies,” there are no exceptions for rape or incest. Similar laws in other states have been passed or are awaiting enactment, depending on what the Supreme Court ultimately decides.

Two separate arguments will be held back to back over the Texas dispute, just 10 days after the High Court granted a review. The frantic pace with which the judges grapple with the issue is a sign that they recognize the important issues involved.

But the problem at this point is a more complex question: who can sue and who can be sued under the law? The Justice Department and abortion service providers have gone to federal court separately for a key provision, which creates financial incentives for private citizens – even non-Texans – to file civil lawsuits against doctors and those who help women get an abortion. This ambiguous enforcement regime is at the heart of current legal struggles.

“The [state] the government has no role to play in its enforcement, “said Josh Blackman, professor of constitutional law at the South Texas College of Law Houston.” So basically every citizen of Texas is now a private attorney general.

The High Court has twice authorized the application of SB 8, including on October 22, drawing criticism from Judge Sonia Sotomayor.

“For the second time, the court is seized with a request to prohibit a law enacted in flagrant disregard of the constitutional rights of women seeking abortion care in Texas,” she wrote. “For the second time, the court refuses to act immediately to protect these women from serious and irreparable harm.”

“The legal vacuum is excruciating both for the patients and for the staff at our clinic. Lack of access to safe abortion care harms our families and communities and will have lasting effects on Texas for decades to come, ”said Amy Hagstrom Miller, Founder and CEO of Whole. Woman’s Health, which led to one of the lawsuits. The group operates four clinics in Texas. “We have had to turn away hundreds of patients since this ban went into effect.”

More than 90 percent of abortions take place in the first 13 weeks of pregnancy, according to the CDC. Abortion rights groups say the six-week ban being promoted by Texas and other states would come before many women even knew they were pregnant.

Texas Attorney General Ken Paxton told the court in a legal brief: “The heartbeat provisions of SB 8 reasonably enhance Texas’ interest in protecting unborn life, which exists from early in pregnancy. . “

Opponents of abortion applauded the High Court’s decision to intervene.

“This is a great development for the Pro-Life movement because the law will continue to save about 100 babies a day,” said Kimberlyn Schwartz of Texas Right to Life, “and because the judges will actually be discussing the validity of these prosecutions. in the first place. “

Supreme Court to hear first of two abortion right appeals, with arguments Monday over Texas six-week ban

 |  Today Headlines

Maria Peña holds a rosary and signs outside a building housing an abortionist in Dallas on Thursday, October 7, 2021 (AP Photo / LM Otero)
(Photo AP / LM Otero)


Mississippi issues

The most direct challenge to the right to abortion lies in Dobbs v. Jackson Women’s Health Organization, which will be presented to judges exactly one month after the Texas cases.

In question: if all the prohibitions of foreseeability concerning elective abortions are unconstitutional. Mississippi officials are boldly asking the court to overturn its previous Roe v. Wade of 1973, under which abortions are legal nationwide until about week 24 – the point of viability where the fetus can survive outside the womb.

Lower courts blocked that and a subsequent state law banning abortion after six weeks. The state’s only remaining abortion clinic, backed by the Biden administration, has asked the court to confirm Roe and strike down Mississippi’s law.

A Fox News poll conducted in late September showed that 65% of Americans support keeping Roe as the law of the land. This includes, for the first time in the survey, a majority of Republicans. Only 28% want the decision to be overturned.

But there is an even division over whether abortion should be legal.

Other polls in recent weeks have shown that public confidence in judges acting in the best interests of the country is declining. Some legal commentators argue that a sweeping abortion ruling – whatever the outcome – is sure to further shatter the reputation of the judiciary in an increasingly partisan era.


Sandwiched between the Texas and Mississippi arguments, there will be a report in November from President Biden’s Supreme Court Commission – tasked with studying potential changes to the High Court – including the addition of more judges and the imposition of term limits, instead of the current life term.

The handicap of how this court will rule on abortion could begin with a look back at what some of the judges have said on the issue.

Perhaps the court’s strongest supporter of overturning the abortion precedent is Clarence Thomas, the senior associate judge.

He strongly expressed his dissent in the 1992 Planned Parenthood v. Casey, who upheld the right to abortion, and has consistently championed these views over the years. In a 2000 case, he called Roe “gravely wrong”.

“Abortion is a unique act, in which a woman’s exercise of control over her own body ends, depending on her perspective, human life or potential human life,” he wrote. “Although a state can allow abortion, nothing in the Constitution requires it to do so.”

On the other hand, Judge Elena Kagan has been a strong advocate for watch decisis, the legal concept of respect for judicial precedence, which, according to its proponents, promotes clear societal expectations and judicial integrity.

In a Sept. 1 dissent when Texas law was first allowed to come into force by the High Court, Kagan criticized its intention, saying it “bans abortions for the vast majority of women who request them. – in a clear and unchallenged conflict … with Roe and Casey. “

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