SCOTUS moving quickly on Texas abortion law, with civil lawsuit provision main sticking point

A Dallas Morning News reporter tells the Standard justices are most concerned that the law could set a precedent for putting enforcement of laws in the hands of the general public.

By Rhonda Fanning, Jill Ament & Caroline CovingtonNovember 2, 2021 11:23 am, ,

Texas’ new abortion law, Senate Bill 8, remains in effect but it’s unclear for how long. The U.S. Supreme Court heard oral arguments in two cases against the bill on Monday – one case brought by the Justice Department and another by Texas abortion provider Whole Woman’s Health.

Emily Caldwell has been covering the cases from Washington for The Dallas Morning News. She tells Texas Standard that the two justices appointed by former President Donald Trump seem to be most concerned with the law’s provision that allows average Texans to sue, in civil court, anyone whom they believe broke the law. Listen to the interview in the audio player above or read the transcript below to learn more about how this week’s oral arguments center around issues with how Texas’ law is enforced.

This interview has been edited lightly for clarity.

Texas Standard: There’s been a lot of attention focused on the questions that [Justices] Brett Kavanaugh and Amy Coney Barrett, the two Trump-appointed justices, put forward in yesterday’s hearings. What did they seem to be hinting at from your perspective?

Emily Caldwell: I think their questions raised enough eyebrows to potentially suggest that those two justices may reject the attempt to avoid federal court oversight, which is what Senate Bill 8 intends to do. I think the main concern there was: what’s to stop other states, particularly Democratic states, from passing a similar law that delegates enforcement to the general public when it concerns, for example, Second Amendment law – something that conservatives and Republicans are very passionate about. I think what Justice Barrett and Justice Kavanaugh were perhaps thinking was, OK, if we allow this law to stand in Texas when it comes to abortion rights, what’s to stop a state like New York from passing a law that would prevent someone from exercising their Second Amendment rights?

It seems like justices hearing these two Texas cases that had oral arguments yesterday were more concerned with the procedural aspects of SB 8 than they were questions surrounding viability. Do you think that’s fair to say?

I do think that’s fair to say. I think the main thing they’re looking at with Texas’ Senate Bill 8 is the enforcement mechanism – delegating the enforcement from the state to the general public through individual lawsuits. I think we’re really going to get to the question of viability a next month on Dec. 1, when the oral arguments for the Mississippi ban, which bans abortion at 15 weeks, are set to be heard by the court.

Is it any more clear whether these two cases might ultimately end up affecting the rights established by Roe v. Wade and the cases that have followed? Or are we talking specifically about whether Texas’s SB 8 can remain in effect? 

With this case, we’re mainly talking about whether Senate Bill 8 can remain in effect. I think the Supreme Court for now has allowed it to stand – that question, whether or not the law itself should stand as what they were discussing yesterday, and that’s why the hearing was accelerated. Texas Attorney General Ken Paxton said in a press conference after the oral arguments yesterday that they had nine days to prepare. So, it was very quick. I think the momentum across the nation, though, is that we’re building towards something. The court could very well, with its 6-3 supermajority, overturn Roe v. Wade next month or maybe even with this case now.

Is there any indication as to when we might have a decision in either of these two cases? 

That’s a good question. I don’t know. The court has been moving very, very quickly. So we could potentially see a decision soon, especially knowing that the court has to decide whether or not this ban stays in place in Texas, where we’re talking about how it impacts the lives of Texas women and other people who are seeking abortions. So who knows, but I wouldn’t be surprised if we did see a decision quickly.

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