Friday, October 22, 2021
The Supreme Court today declined to halt the Texas abortion ban, S.B. 8, but expedited appeals by abortion providers and the Biden administration in two separate orders today.
Today's actions by the Court mean that Texas's law stays in place while the appeals proceed at the Supreme Court. The Court set a super-fast briefing schedule and slated oral argument in both cases for November 1.
In the Biden administration appeal, the Court limited the case to whether the United States can sue Texas, state court judges, state court clerks, other state officials, and private parties to prohibit S.B. 8 from being enforced. Justice Sotomayor dissented, arguing that the Court's failure to halt the law pending appeal effectively means that women can't get abortions in Texas. (We posted on the Biden administration appeal most recently here.)
In the doctors' appeal, the Court will decide both whether the doctors can sue state judges, state officials, and private individuals, and, if so, whether S.B. 8 is unconstitutional.
(Remember that the Court will hear yet another case testing a state's abortion ban--Mississippi's ban on abortions after 15 weeks of pregnancy. That case, Dobbs v. Jackson Women's Health Organization, puts Roe and Casey front and center. Still, there may be room in the case for the Court to uphold the law without flat-out overruling Roe. Oral argument in Dobbs is set for December 1.)