The U.S. Supreme Court today took action to decide quickly whether Texas has effectively shielded its new "heartbeat" abortion law (S.B. 8) from review. In two cases in which emergency relief was sought, the Court granted review ahead of any decision by the Court of Appeals. In Whole Woman's Health v. Jackson, it granted a petition for certiorari before judgment. (Order List). In the case, the Supreme Court previously refused to prevent Texas' S.B.8 from continuing in effect while its constitutionality is being litigated. (See prior posting.) Also today, the Court acted in United States v. Texas, the Justice Department's challenge to the Texas law. The Court granted certiorari before judgment and "deferred pending oral argument" the government's motion to vacate the 5th Circuit's stay of the district court's injunction barring enforcement of S.B.8. The grant of review was limited to:
May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.
This parallels the question presented by the Petition for Certiorari in Whole Woman's Health:
[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.
In both cases, the Court ordered that petitioners' briefs (as well as any amicus briefs) be filed electronically by Oct. 27, and reply briefs be filed by Oct. 29. Oral argument in both cases is set for Nov. 1.
Justice Sotomayor filed a dissent to the Court's refusal in United States v. Texas to grant an immediate stay, pending the appellate process, of enforcement of the law, saying in part:
[T]he Court’s failure to issue an administrative stay of the Fifth Circuit’s order pending its decision on this application will have profound and immediate consequences. By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended...
CNN reports on the Court's action, as does the New York Times.
