SCOTUS to hear arguments against Texas abortion law. But Roe v. Wade also at risk of rollbacks.

“I wouldn’t be surprised if we saw two different outcomes: if the court accepted that there were constitutional problems with SB 8 at the same time that the court began down the road to reversing Roe v. Wade in the next year or two,” says one legal scholar.

By Kristen CabreraOctober 25, 2021 6:54 am, ,

The U.S. Supreme Court announced Friday that it will hear oral arguments from the Justice Department against Texas’ abortion law, known as Senate Bill 8. It will also hear arguments against the law brought by abortion providers as soon as Nov. 1. In the mean time, the law will remain in effect in Texas.

Mary Ziegler, a Florida State University College of Law professor specializing in the history of abortion law, joined Texas Standard to talk about the significance of SB 8 and the significance of the court’s seeming “about face,” especially after it refused to intervene when the law went into effect in September.

Listen to the interview with Ziegler in the audio player above or read the transcript below to learn more about what to expect during the challenges against SB 8 and the possible consequences for abortion rights nationwide.

This interview has been edited lightly for clarity.

Texas Standard: The U.S. Supreme Court will review the case against SB 8 brought by the Biden administration. In the mean time, the law remains in effect in Texas, is that correct?

Mary Ziegler: Yeah, that’s correct. And the courts seem to be sending sort of mixed signals about the fate of SB 8 because, on the one hand, if they thought the law was unconstitutional, it seems strange to let it remain in effect. On the other hand, if they thought the law was clearly constitutional, it’s strange, not only that they took up the case, but that they did so in such a hurry. I mean, oral argument is scheduled on Nov. 1, which was less than 10 days after the court announced its decision to take the case.

And we should also note the partial dissent from Justice Sonia Sotomayor. What is it that she had to say?

Ziegler: Justice Sotomayor, I think, believes that SB 8 is plainly unconstitutional, and not only unconstitutional but a sort of flagrant attempt to get around the power of the judiciary to review the constitutionality of laws. I think the striking thing about Justice Sotomayor’s dissent was not only what she had to say but the fact that she was writing only for herself. Again, that may make you wonder if the court is likely to block SB 8 once it has a full kind of record and opportunity to consider the case because, of course, in Whole Women’s Health v. Jackson – the first round of the abortion providers litigation on SB 8 – Chief Justice [John] Roberts and Justice [Elena] Kagan and [Justice Stephen] Breyer joined Sotomayor in dissent. And so it seems unlikely that those justices have fewer concerns about SB 8 than they did in September. It seems more likely that they didn’t see the point of stirring the pot when they think maybe their colleagues are going to have a harder look at SB 8 in the weeks to come.

In addition to the Justice Department’s case, there’s a separate case that the Supreme Court has agreed to take up that has been brought forward by abortion providers, correct?

Ziegler: Correct. The court agreed to hear two cases, and there’s actually some debate among legal scholars about what precisely are the bounds of the questions the court agreed to hear. In the Justice Department’s case, the court is focusing on whether the United States can bring constitutional challenges of this kind to state law. In the abortion provider’s case, the court seems to be mostly focused, not on whether it’s constitutional to ban abortion at six weeks – although you could argue that that’s kind of baked into the petition the court took. [Rather,] they seem to primarily be focusing on sort of the unusual enforcement mechanism that SB 8 uses. So it seems, primarily, that we’ll be looking at kind of procedural questions, but procedural questions with pretty big ramifications.

Is this why the court scheduled these oral arguments for Nov. 1, prior to its willingness to hear the so-called fetal heartbeat case brought against Mississippi?

Ziegler: Yeah. Mississippi’s is a fetal pain case, and it’s obviously a direct challenge to Roe v. Wade because it will force the court to reconsider whether viability is the dividing line. It’s really kind of hard to say why they were in such a hurry because, of course, the pendulum has swung all the way from sort of this nonchalance the court really exhibited toward us early on where, not only did they let it go into effect but they didn’t even rule on an emergency petition for almost two days of sort of delay. So now we’re setting kind of land speed records for how quickly the court is resolving this.

Part of it could be that the court wants to be working with a kind of clean slate when it comes to the fate of Roe and the decision in the Dobb’s case. And part of it could also be that the court seems aware that the SB 8 litigation has damaged its standings. We’ve seen polls in recent weeks showing that the court’s approval ratings are plummeting. We’ve seen many of the justices across the ideological spectrum on the road claiming that the court is a nonpartisan institution. So I think there’s a sense that people have reacted badly, not only to the way the court has let SB 8 go into effect, but the way the court hasn’t treated it with the gravity it deserves. And so I think there’s been an about face on the part of the court to sort of treat this as a serious issue because, of course, it is.

What is your sense about what the court’s direction will be? I know reading the tea leaves in these things is always dangerous business, but how do you see this playing out?

Ziegler: I think the fate of SB 8 is much less clear than the fate of Roe, if you’re talking long term. I don’t think the court would have taken the Mississippi case if it didn’t have the intention of substantially rolling back abortion rights quickly. And I don’t think the court would have taken the Mississippi case if there wasn’t a desire to overrule Roe entirely. SB 8 is a different matter because this sort of enforcement mechanism, the sort of civil enforcement mechanism that creates bounties and so on, that could be used to circumvent rights that the Supreme Court may be more sympathetic to – whether that’s the right to bear arms or the religious liberty. And so there might be some awareness on the court that SB 8-style laws are troubling, even if they don’t believe that there’s a constitutional right to abortion. So I think it’s hard to say, but I wouldn’t be surprised if we saw two different outcomes: if the court accepted that there were constitutional problems with SB 8 at the same time that the court began down the road to reversing Roe v. Wade in the next year or two.

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