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The Supreme Court will hear oral argument on Nov. 1 in a pair of cases challenging the Texas law that bans nearly all abortions after the sixth week of pregnancy. In two orders issued on Friday afternoon, the court granted requests by the Biden administration and a group of Texas abortion providers to leap-frog proceedings in the court of appeals, but it allowed the law to remain in effect for now — a decision that drew a stinging dissent from Justice Sonia Sotomayor.The two orders suggest that the court will not directly weigh in on whether the Texas law, known as S.B. 8, violates the constitutional right to obtain an abortion. Instead, in the case brought by the Biden administration, the court will consider whether the federal government has the right to sue in federal court to block the law’s enforcement. And in the case brought by the abortion providers, the court will assess the law’s unusual private-enforcement structure, which deputizes private individuals to bring lawsuits against doctors, clinics, or anyone else who “aids or abets” an abortion.The Biden administration had asked the court to block enforcement of S.B. 8 while the litigation proceeds, but the justices “deferred” that request “pending oral argument,” meaning the law will remain in place until at least Nov. 1. It was the second time since S.B. 8 took effect on Sept. 1 that the court declined to block the law on an emergency basis.
Lawyers for the state of Texas urged the Supreme Court on Thursday to leave a Texas law that imposes a near-total ban on abortions in place. “Neither the federal government nor abortion providers are entitled to demand Texas write its laws to permit them to be challenged” in federal court before they are enforced, the state told the justices. But if the court opts to review the merits of the law on an expedited basis, Texas continued, it should use the case as an opportunity to overrule the court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey, establishing the constitutional right to an abortion.The filings came in two separate cases arising from the Texas law, known as S.B. 8. In United States v. Texas, the Department of Justice wants the Supreme Court to reinstate a decision of a federal district judge who declared the law unconstitutional and temporarily blocked it earlier this month. A federal appeals court put the district judge’s ruling on hold, prompting the DOJ to seek emergency relief at the Supreme Court on Monday.In Whole Woman’s Health v. Jackson, Texas abortion providers have asked the Supreme Court to weigh in on the law’s unusual enforcement mechanism, which deputizes private individuals to bring lawsuits against anyone who either provides or “aids and abets” an abortion. In a rare procedural move, the providers urged the court to take up the question without waiting for a final ruling from the U.S. Court of Appeals for the 5th Circuit, where the case returned after the justices rejected the providers’ earlier request to block the law from going into effect.