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Today, the Supreme Court will hear arguments in a case that tests whether Texas can effectively nullify the right to an abortion and get around the Constitution by delegating the enforcement of a law not to state officials but to private citizens. Here's NPR's legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: This is the second time that the novel Texas law known as SB 8 has come before the court. In a midnight ruling two months ago, the court by a 5-4 vote let the law go into effect over the protests of the court's three liberals and its conservative Chief Justice John Roberts. The chief justice called the law unprecedented because it essentially outsourced enforcement to, quote, "the populace at large" in order to "insulate" the state from being held accountable for an apparently unconstitutional law. Indeed, those who wrote the law have boasted about how it is designed to avoid review by the federal courts. Specifically, it bans abortions after six weeks when many women don't yet know they're pregnant, and it allows anyone who aids and abets an abortion to be sued by any private citizen for a minimum of $10,000. The result? Abortions in Texas have come to a virtual halt. Amy Hagstrom Miller is president and CEO of Whole Woman's Health, which runs four clinics in Texas.
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AMY HAGSTROM MILLER: The state's gambit has worked. The impact is catastrophic.
TOTENBERG: Nothing has changed since Miller said that last week. But now the case is back before the Supreme Court, with the federal government weighing in this time, along with abortion providers. The court has expedited briefing and arguments on a rocket docket schedule of days instead of months. And yet, a majority of the court has let the Texas law remain in place, even as it's being challenged as unconstitutional. It's a tricky and complicated procedural case that focuses not on abortion rights per se, but the consequences remain huge. That starts with this problem - if the federal government is correct and the state of Texas is wrongly nullifying a constitutional right, who would the court enjoin? A federal judge did briefly order state court judges and clerks not to accept any of the lawsuits authorized by the state law. But as Howard Wasserman, an expert on legal procedure, puts it...
HOWARD WASSERMAN: That's pretty unheard of - never been done before.
TOTENBERG: And that, he explains, is why the challenge brought by the clinics failed on the first try. Now, however, comes the federal government saying that under the Constitution, it does have the authority to go to court to enforce a constitutional right - the right to abortion that's been established and upheld for nearly a half-century. The government argues it has an interest that supersedes state interests, namely the supremacy of the Constitution and preventing the state from nullifying the U.S. Supreme Court's constitutional rulings. Professor Wasserman thinks the federal government has a good chance of prevailing.
WASSERMAN: I think the court is going to say that the government can bring this suit, and it may be informed by the fact that this law is so blatantly invalid under existing precedents.
TOTENBERG: Therein lies the rub, says Harvard Law professor Stephen Sachs, who doubts the new conservative super majority will continue to uphold the court's key abortion precedents - Roe vs. Wade and Planned Parenthood vs. Casey.
STEPHEN SACHS: It's not at all clear that the Supreme Court would agree that those cases are rightly decided. They might say that they're so wrongly decided that they have to be overruled.
TOTENBERG: And if he's right and Texas clinics restarted performing abortions now, they could be liable for millions, even billions, of dollars in the long run Under the Texas law.
SACHS: You know, for the folks who think that Roe was seriously wrongly decided, there's also the consideration that every abortion that doesn't occur is a life saved. And so it's less clear that they would agree that, you know, the only folks being harmed here are those who are prevented from obtaining abortions.
TOTENBERG: This is clearly a flection point for the court on abortion and potentially a moment of transition on how to handle it. But as Florida State University law professor Mary Ziegler observes, this is not the scenario that even the court's most anti-Roe justices likely envisioned.
MARY ZIEGLER: I think the Texas case sort of landed on the justices' laps. It wasn't necessarily the case that the conservative justices wanted to take to rethink Roe. It has a lot of weird aspects to it.
TOTENBERG: And, she notes, it isn't focused on viability...
ZIEGLER: Which people have long viewed as a weakness of the original Roe-Casey framework. So I think it makes more sense for them to kind of clear the decks of SB 8 and then talk about abortion in probably the way they had wanted to all along, which was through the Dobbs case.
TOTENBERG: The Dobbs case tests Mississippi's law banning abortions after 15 weeks. It's long been scheduled to be heard this term and is set for oral argument on December 1. It's a classic challenge to Roe because a ban after 15 weeks directly contradicts the court's Roe framework, namely that a woman has the right to terminate a pregnancy before the fetus is viable, meaning before the fetus can survive outside the womb at about 22 to 24 weeks. So what's the court going to do in the meantime with the Texas law? How it handles the case could be a very big deal because, at least in theory, there are other rights that could be similarly circumvented. Professor Ziegler.
ZIEGLER: Can you do that with guns? Can you do that with religious liberty? Can you do that with freedom of speech? Can you do that with birth control?
TOTENBERG: That possibility is why, for instance, a gun rights group filed a brief siding with abortion providers in the Texas case. But Ziegler thinks it's more likely that there is a fifth vote to punt on the Texas case and refocus the court on Dobbs, the Mississippi case.
ZIEGLER: I think there would be an option that might be attractive to the court, which would be to use the SB 8 case's political cover for whatever it's going to do in Dobbs and essentially say we're uncomfortable with SB 8 or we think the Justice Department can bring this challenge, something that lets them look less partisan given that they've been very anxious about appearing partisan.
TOTENBERG: That, however, would require one of the five justices who have twice voted not to block the Texas law to relent, at least temporarily. Of course, nobody really knows what's going to happen. Figuring out what's going on behind the scenes in the marble palace is a bit like Kremlinology.
Nina Totenberg, NPR News, Washington.
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