The Supreme Court’s Authority is at Stake in the Texas Abortion Case

The Supreme Court’s Authority is at Stake in the Texas Abortion Case

By the close of business today, the United States and Texas will have filed Supreme Court briefs addressing the question whether the former can sue the latter to enjoin judges, clerks, and private parties from implementing S.B. 8, the Texas statute that forbids abortion after roughly six weeks and relies exclusively on private litigation for enforcement. Although Texas seeks to use the law and the litigation over it as a vehicle for overturning Roe v. Wade and other precedents establishing a constitutional right to abortion, the high Court’s order that set the expedited schedule—including oral argument on Monday of next week—makes clear that the Justices will consider only the procedural issues presented by S.B. 8’s unusual enforcement mechanism. The stakes may thus appear lower than those in an abortion case from Mississippi scheduled for oral argument exactly one month after the Texas case. That appearance is false. As Justice Sotomayor explained in her dissent from the Court’s failure to stay S.B. 8 pending final judicial resolution, because of the law’s chilling effect, Texas has already effectively forbidden ninety-five percent of abortions in the state. Regardless of the outcome in the Mississippi case—which involves a ban on abortion after fifteen weeks—a ruling for Texas on the procedural issues could allow it and other states that enact similar laws to S.B. 8 to effectively ban most abortions. Thus, despite the Court’s effort to limit the case to the procedural issues, as a practical matter, the Texas case involves the substantive question […]

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