Supreme Court hears arguments in two cases related to SB 8 abortion law

Even if the court overrules SB 8’s provision allowing people to sue anyone who participates in obtaining an abortion, the future of Roe v. Wade could be decided by other cases.

By Rhonda Fanning, Jill Ament & Shelly BrisbinNovember 1, 2021 7:27 am,

The U.S. Supreme Court hears arguments in two Texas cases Monday. Both concern Texas’ Senate Bill 8, the state’s restrictive abortion law. How they are decided will impact the availability of abortion in the state, but the future of Roe v. Wade may not rest on the outcome of these two cases.

One of the cases, Whole Woman’s Health v. Jackson, stems from a case brought by Texas abortion providers in July. The high court is being asked to decide whether Texas can “insulate” SB 8 from review by a federal court by outsourcing the power to enforce the law to the public.

The second case is one brought by the Biden administration against Texas. The question at issue is whether the federal government may sue in federal court to prohibit SB 8 from being enforced.

Elizabeth Sepper is a law professor at the University of Texas at Austin. She told Texas Standard that the Supreme Court could decide that SB 8’s procedural approach isn’t valid – the law allows private citizens to sue anyone involved in obtaining an abortion after six weeks of pregnancy – but could also rule to curtail abortion rights when it hears other cases this term. The court has already ruled once on the procedural issue in a one-paragraph ruling.

“If you’ll recall, the Supreme Court had before it the question of the procedural issue before it back in August, and in early September let SB 8 go into effect,” Sepper said.

Sepper says the court has an important role to play in determining the constitutionality of SB 8.

Though the September decision and the current presentation of arguments seems quick in Supreme Court terms, Sepper says the magnitude of the case is a factor.

“It’s been two months that we’ve had unconstitutional law in the state of Texas that effectively bans all abortions,” Sepper said “So that’s quite slow.”

Since its decision to let SB 8 go forward, Sepper says the court has faced a great deal of public backlash, which she believes is a factor in the decision to take up the issue again so quickly.

The Whole Woman’s Health case focuses on SB 8’s provision that allows private citizens to sue those they believe have participated in providing abortion care in any way.

“[It] sets up a set of rules for litigation that only apply to these abortion providers or other possible defendants,” she said.

The plaintiffs make the argument that court clerks who accept lawsuits under SB 8 can be enjoined – in other words, prevented from accepting those suits.

Plaintiffs also argue that allowing the SB 8 lawsuit mechanism to stand would give other states the opportunity to pass laws that use private lawsuits to control a variety of other kinds of activity not intended by the Texas Legislature.

“If the state of Texas were to win here, we could see other states adopting similar mechanisms to avoid essentially any opinion that the Supreme Court might issue,” Sepper said. “So this is very much a case about the power of the federal courts and the ability of the Supreme Court to protect constitutional rights.”

Sepper says Texas is “leaning into some very old state law” that prohibits federal courts from reviewing state law before it has been enforced.

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