Though the Court split 5-4 in declining to block the unique ban before it took effect in September, the justices now have before them evidence of the sweeping impact it’s had on the ground.
Texas’ abortion ban goes back before the Supreme Court on Monday, where both abortion clinics and the Biden administration will argue that the law violates longstanding precedent protecting the right to terminate a pregnancy and threatens to unleash a stream of copycat laws that range far beyond abortion. Though the Court split 5-4 in declining to block the unique ban before it took effect in September, the justices now have before them evidence of the sweeping impact it’s had on the ground. After Monday’s showdown, they may come to a different conclusion. For the last two months, abortions have all but ceased in Texas, forcing those with the means to travel out of state and others to carry unwanted pregnancies to term, with no exemptions in the law for victims of rape or incest. The justices appear to grasp the urgency of the issue by agreeing to hear arguments on an extraordinarily fast timeline unseen at the court in over two decades. The hastily-drafted legal briefs filed last week hint at where the arguments are likely to go, both in the Texas case and in an upcoming December case on a Mississippi abortion law that more directly targets Roe vs. Wade. But Monday’s cases could also take the court in unexpected directions, raising questions of whether and how states can shield their laws from judicial review. Here are five things to watch (or listen for!) as the justices take an in-depth look at a law that has intensified the already-raging abortion debate: Monday’s arguments could wind up limited strictly to the legal consequences of Texas enforcing its abortion ban through suits brought by private individuals instead of the government, but don’t count on it. Arguments in the Mississippi lawsuit that was supposed to be the Supreme Court’s sole blockbuster abortion case this term are just a month away, so advocates on both sides will be on high alert for any comments from the justices that offer tea leaves on whether the court is open to scuttling the framework it adopted nearly half a century ago in Roe. v. Wade. “The language they use could be revealing in the sense of indicating whether they have some worries about threats to Roe or whether Roe is good law,” said Georgetown Law professor Caroline Fredrickson, former president of the American Constitution Society. Based on their written orders, the justices seem to have ruled out getting into the substance of abortion precedent in one of the two cases to be heard Monday: a challenge filed by the Justice Department after the Texas law took effect. Arguments in that case are expected to focus on whether the federal government has grounds to sue in these circumstances.
