The U.S. Supreme Court on Friday declined to halt Texas’ heartbeat abortion ban but agreed to hear oral arguments on November 1 in the Biden administration’s challenge to the law – a rare move by a court that typically schedules its calendar months in advance.
Meanwhile, Texas is asking the high court to consider overturning Roe v. Wade, the 1973 decision that legalized abortion nationwide.
The law in question, S.B. 8, went into effect September 1 and prohibits abortion if an unborn baby’s heartbeat is detected. It gives sole enforcement authority to citizens, who are allowed to sue abortion doctors who violate the law.
The Biden administration is asking the Supreme Court to block the law. A federal appeals court panel previously rebuffed the administration’s request.
The court on Friday set November 1 for oral arguments in the Biden administration’s challenge to the law, although the court said it would not consider the constitutionality of the law itself. Instead, the court said the legal question will be 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?”
The justices on Friday declined to immediately block the law from taking effect, with Justice Sonia Sotomayor, a member of the court’s liberal wing, dissenting.
Opponents of the law have found it difficult to challenge in court because state officials are not given enforcement power under the law’s text.
Texas has asked the Supreme Court to overturn Roe. That issue, though, apparently won’t be considered November 1.
“That question, of course, is teed up for decision in Dobbs v. Jackson Women’s Health Organization, to be argued on December 1,” legal commentator Ed Whelan wrote at National Review, referencing the court’s scheduled consideration of Mississippi’s 15-week abortion ban. “The Court seems intent on resolving the controversy over the Texas Heartbeat Act before it hears oral argument in Dobbs.”
Texas this week asked the Supreme Court to consider overturning Roe and the 1992 Planned Parenthood v. Casey decision.
“As some respondents have explained in their contemporaneously filed conditional cross-petitions for certiorari, those decisions created a supposed fundamental right out of judicial say-so,” the Texas petition said. “There is no right to elective abortion ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’ such that neither liberty nor justice would exist if [it was] sacrificed.”
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.