AUSTIN (Nexstar) — On Monday, the U.S. Supreme Court heard two cases attempting to block Texas’ controversial abortion law that state lawmakers passed last spring.
The law, Senate Bill 8, allows private citizens to sue anyone who aids or abets in an abortion after cardiac activity is detected in the womb, which can occur as early as six weeks into a pregnancy.
The Supreme Court has previously dismissed lawsuits attempting to block the law before it officially went into effect in September.
On Monday, the court considered procedural questions about the law, not the substance of the law itself.
In the first of two cases, Whole Woman’s Health argued the Texas abortion law has made providers so afraid to provide an abortion, it’s denying women access across the state.
“No one is providing abortions in Texas right now. It’s too fraught with the legalities,” Texas OBGYN Dr. Nancy Binford said ahead of Monday’s hearing.
Kim Schwartz with Texas Right to Life, though, said the bill is already saving lives. “Last year, [Texas] went to about 150 to 160 [abortions] per day. With the Heartbeat Act, about 85 to 90% of abortions were after six weeks of pregnancy,” Schwartz said.
The justices Monday called this a novel law. That’s because state lawmakers wrote it to empower citizens to enforce it, and doesn’t make those later abortions a crime, it just opens the floodgates for civil lawsuits.
Six of the nine justices, including two conservatives, raised concerns about the ripple effect the legislation could have.
“Essentially, we would be inviting states, all 50 of them with respect to their own preferred constitutional rights, to try to nullify the law that this Court has laid down as to the content of those rights. I mean, that was something that until this law came along, no state dreamed of doing,” liberal Justice Elena Kagan said.
“There’s nothing the Supreme Court can do about it. Guns, same sex, marriage, religious rights, whatever you don’t like. Go ahead,” she continued.
“With Brown versus the Board of Education, a state could have gotten around the Supreme Court’s decision in Brown by allowing anyone to sue for $10,000 or more, someone who is integrating a school into the federal courts would have been completely powerless to do anything about that,” Mark Heron, senior counsel at the Center for Reproductive Rights, said following the hearing.
That’s why the Department of Justice is stepping in, too, filing its own lawsuit to try to block the law.
“When Justice Kavanaugh asked Texas’ lawyer, ‘Would this law also be available to block the enforcement of gun rights to block the enforcement of free speech rights?’ And after a bit of hemming and hawing, and the Texas lawyer said, ‘Yes,’ that’s a pretty important concession,” Steve Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, explained.
Vladeck, an expert in federal courts and constitutional law, said if SCOTUS decides to go forward with the providers’ lawsuit, though, that would mean dropping the DOJ’s case.
“The federal government’s whole theory here is that they’re specifically allowed to sue because no one else can,” Vladeck explained.
While there’s no official timeline set by the court, and it normally can take months, Vladeck said SCOTUS could announce a decision in the coming days.
“The court gave 10 days between when a granted review and heard argument, I think it’ll be no more than that before we’ve got the decisions in these cases, and probably quite a bit less. And I think it’s possible we’ll know more by the end of the week about the fate of SB 8,” Vladeck said.
This is the fastest the high court has moved on a case since Bush vs. Gore in December of 2000.