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Supreme Court Keeps Texas Abortion Law In Effect For Now But Will Take Up Challenges

By News Creatives Authors , in Business , at October 22, 2021


Texas’ controversial abortion law will stay in effect after the U.S. Supreme Court declined Friday to grant the Biden administration’s request for it to reimpose a lower court’s injunction while the government’s challenge against the law plays out — and said it would take up that case and another suit against the law this term.

Key Facts

The Supreme Court decided to defer its judgement on Texas’ Senate Bill 8 pending oral arguments in the cases, which are scheduled for November 1.

The Justice Department had asked the Supreme Court to block an appeals court’s stay that put the abortion law back in effect, as well as to fully hear the case and decide whether or not SB 8 should be overturned entirely.

The Biden administration said in its petition to the Supreme Court it should block the “clearly unconstitutional” SB 8 because leaving it in place hurts the federal government’s “sovereign interests,” as well as “the thousands of Texas women who are being denied their constitutional rights.”

Texas had argued the law should remain in effect because the federal government “cannot get an abortion” and thus does not have standing to bring the case, and a federal court should not be allowed to “enjoin the entire Texas judicial system and millions of individuals who were not parties,” as SB 8 is enforced through lawsuits brought by private citizens.

The court said in its ruling Friday it would only consider whether the federal government is entitled to sue Texas and block the “state, state court judges, state court clerks, other state officials, or all private parties” from enforcing the law.

Texas had also asked the Supreme Court to “reconsider” Roe v. Wade and the court’s precedent that guarantees the right to an abortion if it decided to take up the case for full oral arguments, but the court did not say in its ruling it intended to consider that.

Chief Critic

Justice Sonia Sotomayor concurred with the decision to set a hearing but dissented with the decision not to block the law in the interim. “The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now,” Sotomayor wrote, adding she dissented “because every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole.”


A second lawsuit challenging SB 8 brought by abortion providers is also before the Supreme Court right now. The abortion providers have asked the Supreme Court to take up the case and allow it to skip the 5th Circuit, which the petitioners say has been taking too long to consider it. The court ruled Friday to also hear oral arguments in that case November 1 along with the DOJ challenge.

Key Background

SB 8 bans nearly all abortions in Texas after approximately six weeks of pregnancy. Unlike other similar abortion restrictions that have been struck down in court, SB 8 seeks to escape legal scrutiny by deputizing private citizens to enforce the law—rather than government officials—through lawsuits they’re empowered to bring against anyone who “aids and abets” an abortion, in order to make it harder to name defendants that could actually be stopped from enforcing the law. After the Biden administration sued Texas in September over the law, a district court judge issued an injunction that blocked the law from being enforced as the litigation played out, but that ruling only lasted two days before the 5th Circuit issued a stay on that ruling that put the law back in effect. The Supreme Court’s order in the DOJ case marked the second time the high court has now ruled on SB 8, after it previously ruled against the abortion providers the first time they asked the court to rule in their case. The conservative-leaning Supreme Court ruled 5-4 to keep the law in effect, deciding it was too soon to bring the case, but the justices didn’t rule on the constitutionality of the law itself and said their order shouldn’t stop other litigation against the law from being brought.

Further Reading

Biden Administration Asks Supreme Court To Block Texas Abortion Law (Forbes)

Texas Asks Supreme Court To ‘Reconsider’ Roe V. Wade If It Takes Up Abortion Law Case (Forbes)

DOJ Asks Supreme Court To Rule On Texas Abortion Law — Here Are All The Abortion Cases The Court Could Rule On This Term (Forbes)


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