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The Justice Department said on Friday that the federal government would ask the Supreme Court to overturn a lower court ruling on a restrictive Texas law that has banned most abortions since September. A federal appeals court said Thursday that Texas law should remain in effect while a Department of Justice lawsuit challenging the law is pending in court. It’s just the latest legal action on the law, which is now heading to the Supreme Court for the second time.
Here are some questions and answers about the law and its way through the courts.
How exactly did Texas law get to this point?
Texas Republican Governor Greg Abbott signed a law in May to ban abortions in Texas before many women even knew they were pregnant. The law prohibits abortions once heart activity is detected, usually around six weeks. The law differs from similar efforts to restrict abortions in other states by leaving enforcement to private citizens, who can sue doctors or anyone who assists a woman with an abortion.
The law was challenged by abortion rights advocates before it went into effect in September, but its unique enforcement mechanism frustrated those efforts at the time. The law made a previous trip to the High Court, which refused to intervene. After the law came into effect, the Biden administration filed a separate complaint challenging the law. It is this trial that is now well underway for the High Court.
What happened before when the law went to the Supreme Court?
The court let the law go into effect, voting 5-4 to deny an emergency appeal from abortion providers and others. The majority judges said “serious questions” had been raised about the law. But they cited a host of issues, including the new law enforcement mechanism and the fact that no one had yet attempted to prosecute someone under the law for helping a woman get an abortion among the women. reasons why they refused to intervene. The majority stressed that they did not draw any conclusions about the constitutionality of the law.
The Liberal Justices and Chief Justice John Roberts were dissenting. Judge Sonia Sotomayor called the decision of her Conservative colleagues “astonishing”. Judge Elena Kagan wrote that the law was “patently unconstitutional”, and Judge Stephen Breyer declared that a “woman has the federal constitutional right to have an abortion during” the first stage of pregnancy.
What exactly happened most recently at the Court of Appeal?
This time around, with the Biden administration lawsuit, a Texas federal judge suspended the law. Judge Robert Pitman took Texas to task in a 113-page opinion, saying Republican lawmakers had “put in place an unprecedented and transparent legislative regime” in trying to circumvent the courts.
“Since the entry into force of SB 8, women have been unlawfully prevented from exercising control over their lives in a manner that is constitutionally protected,†wrote Pitman, who was appointed to the bench by the former President Barack Obama.
Pitman’s decision allowed abortions to resume in Texas for a brief period before the 5th U.S. Court of Appeals temporarily stopped them. A three-judge panel ruled 2-1 Thursday to put in place a more lasting hold while the Biden administration’s trial continues. As of now, Texas law is in effect.
What is happening now with the abortion law in Texas?
The Justice Department announced on Friday its intention to appeal to the Supreme Court. There is no timeline for the Supreme Court’s action, but it would take days, if not longer, for both parties to file briefs with the court, and then more time for the court to act.
The court would not be asked to rule on the constitutionality of the law at this point, but simply whether Texas should be allowed to enforce its law while the Biden administration challenge continues.
The Supreme Court already has a major abortion case on its record for December that could reshape abortion rights in America. What happens, in this case, could affect what ultimately happens in Texas.
How is it possible that Texas has such a restrictive abortion law?
Two major Supreme Court precedents, Roe v. Wade and Planned Parenthood v. Casey, prevent states from banning abortion before viability, the point at which a fetus can survive outside the womb. This occurs around 24 weeks of pregnancy. But Texas’ unique law enforcement mechanism made it difficult to challenge.
What has been the impact of the Texas abortion law?
Since the law came into effect in early September, providers say 80% or more of abortions previously performed in the state are now banned. The Texas women searched for abortion clinics in neighboring states, some hours of driving in the middle of the night and including patients as young as 12 years old. The law makes no exceptions in cases of rape or incest.
States and the Department of Justice are waging legal battles over abortion rights that the Supreme Court described in Roe v. Wade. But in 1992, Planned Parenthood v. Casey, a lesser-known key case, paved the way for some restrictions on abortion – as long as they did not meet the definition of “excessive demand.” With the help of Florida State Law Professor Mary Ziegler, we break it down in this LXplanation.
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