SCOTUSblog by Amy Howe 9/1/2021
The Supreme Court on Tuesday night took a step that anti-abortion activists have hoped for, and abortion-rights supporters have feared, since the death of Justice Ruth Bader Ginsburg nearly a year ago. By failing to respond to a plea for them to intervene, the justices allowed a Texas law that bans nearly all abortions to go into effect early Wednesday morning. The abortion providers challenging the law say that it will bar at least 85% of abortions in the state and will likely cause many clinics to close. The justices could still act on the providers’ request at any time.
The law bans abortions after about six weeks of pregnancy – a time when many people do not yet know they are pregnant – and allows private citizens to sue anyone who helps a patient get an abortion. The Texas legislature passed the law as part of an effort to undercut the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey, which established a constitutional right to have an abortion before the point of fetal viability, generally understood to occur around 24 weeks of pregnancy.
Court watchers and people on both sides of the abortion debate kept vigil into the early hours of Wednesday morning, waiting for an order that never came from the justices. Many experts expected the court to act before midnight central time, when the law was scheduled to take effect. Instead, the court – at least for now – declined to block the law despite the fact that it defies Roe and Casey, the future of which are squarely at issue in a separate case, to be argued in the upcoming 2021-22 term, involving a Mississippi law that bans most abortions after 15 weeks of pregnancy.
The law at the center of the Texas case, known as S.B. 8, prohibits doctors from performing abortions if they can detect a fetal heartbeat, including the kind of cardiac activity that normally occurs at roughly the sixth week of pregnancy. In a twist intended to make the law harder to challenge in court, the law does not rely on state officials to enforce the ban. Instead, the law tasks private individuals with bringing lawsuits against anyone who provides or “aids or abets” an abortion. Anyone who brings a successful lawsuit can collect $10,000 or more from the person who is found to have violated the law. The unusual private-enforcement scheme distinguishes the Texas law from other states’ abortion bans, all of which have been blocked by court rulings ordering state officials not to enforce them because they run afoul of Roe and Casey.
More:
https://www.scotusblog.com/2021/09/texas-abortion-ban-goes-into-effect-after-justices-fail-to-act/
