rainn.png
Wednesday December 8th, 2021 5:43AM

Texas abortion ban stays in force as justices mull outcome

By The Associated Press

WASHINGTON (AP) — More than two weeks have passed since the Supreme Court's extraordinarily rushed arguments over Texas' unique abortion law without any word from the justices.

They raised expectations of quick action by putting the case on a rarely used fast track. And yet, to date, the court's silence means that women cannot get an abortion in Texas, the second-largest state, after about six weeks of pregnancy.

That's before some women know they're pregnant and long before high court rulings dating to 1973 that allow states to ban abortion.

There has been no signal on when the court might act and no formal timetable for reaching a decision.

The law has been in effect since Sept. 1 and the court has been unable to muster five votes to stop it, said Mary Ziegler, a legal historian at Florida State University's law school. “While there is some sense of urgency, some justices had more of a sense of urgency than others,” Ziegler said.

Meanwhile, the justices are two weeks away from hearing arguments in another abortion case with potentially huge implications for abortion rights in the United States.

The court will take up Mississippi's call to overrule the two major Supreme Court rulings that, starting in 1973, have guaranteed a woman's right to an abortion. The state law at issue bans abortions after 15 weeks, well before the point at which a fetus can survive outside the womb.

Viability, typically around 24 weeks, has been the dividing line: Before it, states can regulate but not ban abortion.

Even before the justices decide what to do about Mississippi's law and the fate of Roe v. Wade and Planned Parenthood v. Casey, Texas' law has effectively changed the standard at least for the time being.

It bans abortion after cardiac activity is detected in the fetus, usually around six weeks, and deputizes ordinary citizens to enforce the law in place of state officials who normally would do so.

The law authorizes lawsuits against clinics, doctors and anyone who “aids or abets” an abortion that is not permitted by law.

It was designed to make federal court challenges difficult, if not impossible. Federal courts have had no trouble preventing other bans on abortion early in pregnancy from taking effect when they have relied on traditional enforcement.

The Texas law is doing what its authors intended. In its first month of operation, a study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% compared with September 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Evaluation Project.

Texas residents who left the state seeking an abortion also have had to travel well beyond neighboring states, where clinics cannot keep up with the increase in patients from Texas, according to a separate study by the Guttmacher Institute.

The Supreme Court is weighing complex issues in two challenges brought by abortion providers in Texas and the Biden administration. Those issues include who, if anyone, can sue over the law in federal court, the typical route for challenges to abortion restrictions, and whom to target with a court order that ostensibly tries to block the law.

Under Supreme Court precedents, it’s not clear whether a federal court can restrain the actions of state court judges who would hear suits filed against abortion providers, court clerks who would be charged with accepting the filings or anyone who might some day want to sue.

People who sue typically have to target others who already have caused them harm, not those who might one day do so and not court officials who are just doing their jobs by docketing and adjudicating the cases.

The justices' history with the Texas law goes back to early September when, by a 5-4 vote, they declined to stop it from taking effect.

At the time, five conservative justices, including the three appointees of President Donald Trump, voted to let the law take effect. Chief Justice John Roberts joined the court's three liberals in dissent.

The abortion providers had brought the issue to the court on an emergency basis. After they were rebuffed, the Justice Department stepped in with a suit of its own.

U.S. District Judge Robert Pitman granted the Justice Department's request for an order that put the law on hold. Pitman wrote in a 113-page ruling that the law denied women in Texas their constitutional right to an abortion and he rejected the state's arguments that federal courts shouldn't intervene.

But just two days later, the 5th U.S. Circuit Court of Appeals overrode Pitman and allowed the law to go back into effect.

The Justice Department made its own emergency appeal to the Supreme Court. Rather than rule on that appeal, the court decided to hear the two suits just 10 days later and without the benefit of an appellate court decision.

At the arguments, two Trump appointees appeared to have doubts about the Texas law. Justices Amy Coney Barrett and Brett Kavanaugh questioned whether the law allowed people who are sued to air their constitutional claims in court and whether it would lead to a spate of copycat laws on abortion and other rights protected by the Constitution.

The court seemed particularly concerned about the “chilling effect” similar laws would produce on other constitutional rights, including speech, religion and gun possession, said Sarah Parshall Perry, a legal fellow at the Heritage Foundation.

The court's intervention has few counterparts in recent history, and those include Bush v. Gore, the fight over publication of the government's secret history of the Vietnam War known as the Pentagon Papers, and Richard Nixon's effort to keep from handing over the Watergate tapes that ultimately doomed his presidency.

The justices have never said why they opted to hear the Texas cases so quickly or how soon they might be decided.

The time since the arguments is less than a blink of an eye in high-court terms, where months typically elapse between arguments and a decision. But the justices themselves created the expectation that they would move quickly.

“This is obviously important, but there's not a presidential election deadline looming,” Ziegler said. “Even by Thanksgiving would be extraordinarily fast.”

One possibility is that the court intends to issue a decision before the Mississippi abortion law arguments on Dec. 1.

But Perry said she thinks the court could hold off deciding the Texas case until after it hands down its abortion decision, probably in late June. That would leave the Texas ban in effect.

There's much more that also might only become clear once a decision comes down.

If the court rules in favor of abortion providers or the Justice Department, will there be an accompanying order that blocks the law? That would be the quickest way to allow abortions after six weeks to resume. Justice Elena Kagan raised the prospect of an order during the arguments.

Will there be a majority opinion that speaks for at least five justices or will the court be fractured so that there are at least five for a particular outcome, but for varying reasons? Either side would be happy with five votes, but a majority opinion carries more force.

How many justices will write separate opinions, on either side? A proliferation of opinions can slow the process, as the justices circulate, comment on and revise opinions in their internal deliberations.

This story was first published on November 18, 2021. It was updated on November 19, 2021 to correct name of Heritage Foundation legal fellow. She is Sarah Parshall Perry, not Sarah Marshall Perry.

  • Associated Categories: U.S. News, Associated Press (AP), AP National News, Top U.S. News short headlines, AP Online Headlines - Washington, AP Online Supreme Court News, AP Health, AP Health - Women's health
© Copyright 2021 AccessWDUN.com
All rights reserved. This material may not be published, broadcast, rewritten, or redistributed without permission.
Mississippi executes man who killed wife, terrorized family
A man who pleaded guilty to killing his estranged wife and terrorizing their family has become the first person executed in Mississippi since 2012
7:30PM ( 45 minutes ago )
Cops search 4 Colorado locations in election security probe
A law enforcement task force has conducted searches of four western Colorado locations, including the home of an elections clerk, amid an ongoing investigation into allegations that the clerk was involved in a security breach of elections equipment this year
7:15PM ( 1 hour ago )
Rittenhouse lawyers ask judge to declare mistrial over video
Kyle Rittenhouse’s attorneys have asked the judge to declare a mistrial, saying the defense received an inferior copy of a key video from prosecutors
7:11PM ( 1 hour ago )
U.S. News
Man who shot Arbery testifies: 'He had my gun. He struck me'
The man who fatally shot Ahmaud Arbery has testified at his murder trial that the 25-year-old Black man forced him to make a split-second “life or death” decision by attacking him and grabbing his shotgun
7:46PM ( 29 minutes ago )
House censures Rep. Gosar for violent video in rare rebuke
The House has voted to censure Republican Rep. Paul Gosar of Arizona for posting an animated video that depicted him killing Democratic Rep. Alexandria Ocasio-Cortez with a sword
7:25PM ( 51 minutes ago )
Verlander gets $25M from Astros, Belt remains with Giants
Justin Verlander reached a $25 million deal to remain with the Houston Astros as he comes back from Tommy John surgery, and Brandon Belt accepted an $18.4 million qualifying offer from the San Francisco Giants
7:23PM ( 53 minutes ago )
Associated Press (AP)
Henry Montgomery, at center of juvenile life debate, is free
Officials have released the inmate who was central to a Supreme Court case that extended the possibility of freedom to hundreds of people sentenced to life without parole as juveniles
6:46PM ( 1 hour ago )
Prisons head: Man awaiting execution for killing has remorse
The head of Mississippi's prison system says a man who killed his estranged wife in 2010 appeared calm and expressed remorse ahead of his scheduled execution
6:14PM ( 2 hours ago )
Louisiana gov will pardon Plessy v. Ferguson freedom rider
Louisiana's governor says he will posthumously pardon Homer Plessy, whose 1892 arrest  for refusing to leave a “whites only” railroad car wound up putting “separate but equal” into U.S. law
6:09PM ( 2 hours ago )
AP National News
Oklahoma challenging Pentagon's vaccine mandate for Guard
A dispute between the Oklahoma governor and the Pentagon over the COVID-19 vaccine mandate is setting up the first critical test of the military’s authority to require National Guard troops to get the shot
3:01PM ( 5 hours ago )
Rittenhouse jury to review video; judge blasts news coverage
The jury at Kyle Rittenhouse's murder trial will be allowed to review some of the video in the Kenosha shootings, after requesting it on Day 2 of deliberations Wednesday
3:01PM ( 5 hours ago )
US national parks to offer look into green-friendly transit
Americans may soon get a better glimpse into a future of green-friendly transportation by visiting a U.S. national park
2:19PM ( 5 hours ago )
Top U.S. News short headlines
Review says Pentagon reacted appropriately to Jan. 6 riot
An independent review has concluded that the Defense Department and its top leaders acted appropriately before and during the Jan. 6 insurrection at the U.S. Capitol
6:44PM ( 1 hour ago )
Legal pot growers frustrated by illegal operations in Oregon
A licensed cannabis grower, a vineyard owner and a sheriff were among witnesses who testified this week before a committee of the Oregon Legislature, in an effort to seek help in stemming the proliferation of illegal grow sites in southern Oregon
5:48PM ( 2 hours ago )
Top US envoy appeals for preservation of democracy in Africa
U.S. Secretary of State Antony Blinken has  begun his first official visit to Africa with an appeal for the preservation of democracy in politically and ethnically fractured societies
4:57PM ( 3 hours ago )
AP Online Headlines - Washington
Biden choice for Justice antitrust post wins Senate approval
President Joe Biden’s choice to lead enforcement of competition laws at the Justice Department has won Senate approval
7:15PM ( 1 day ago )
GOP-majority court chosen to consider Biden vaccine mandate
A ping-pong ball may have bounced in Republicans' favor as a GOP-dominated court was selected at random to consider the fate of President Joe Biden's mandate that larger employers require workers to be vaccinated
5:37PM ( 1 day ago )
Ping-pong ball bounce could determine vaccine mandate's fate
The fate of President Joe Biden's mandate that larger employers require workers to be vaccinated could come down to the bounce of a ping-pong ball
12:47PM ( 1 day ago )
AP Online Supreme Court News
EXPLAINER: Why India has repeated air pollution problems
India is experiencing its annual spike in air pollution, which relates in part to the burning of farm fields
4:21PM ( 3 hours ago )
Czechs, Slovaks hit virus records, target the unvaccinated
The Czech Republic and Slovakia have both reported record daily new coronavirus cases
2:26PM ( 5 hours ago )
'Flashing red': Belgium tightens rules amid COVID-19 surge
Belgium has extended the use of facemasks and mandatory remote work in an attempt to contain a new surge of COVID-19 cases
1:49PM ( 6 hours ago )
AP Health
More turn to abortion pills by mail, with legality uncertain
COVID-19 and state abortion restrictions like a near-ban that took effect in Texas in September have people with unwanted pregnancies increasingly considering getting abortion pills by mail
12:35PM ( 4 days ago )
Alabama boy named world's most premature infant to survive
An Alabama boy who weighed less than a pound at birth after his mother went into labor at only 21 weeks and one day of gestation has been certified as the world’s most premature baby to survive
1:47PM ( 1 week ago )
Poland tells doctors: Ailing women have abortion rights
Poland's Health Ministry has issued instructions to doctors confirming that it is legal to end a pregnancy when the woman's health or life is in danger
4:02PM ( 1 week ago )
AP Health - Women's health
Mississippi executes man who killed wife, terrorized family
A man who pleaded guilty to killing his estranged wife and terrorizing their family has become the first person executed in Mississippi since 2012
7:30PM ( 46 minutes ago )
Cops search 4 Colorado locations in election security probe
A law enforcement task force has conducted searches of four western Colorado locations, including the home of an elections clerk, amid an ongoing investigation into allegations that the clerk was involved in a security breach of elections equipment this year
7:15PM ( 1 hour ago )
Rittenhouse lawyers ask judge to declare mistrial over video
Kyle Rittenhouse’s attorneys have asked the judge to declare a mistrial, saying the defense received an inferior copy of a key video from prosecutors
7:11PM ( 1 hour ago )
Rapper Young Dolph fatally shot at Tennessee cookie shop
Authorities say rapper Young Dolph was fatally shot at a cookie shop in his hometown of Memphis, Tennessee, and a search is underway for the shooter
6:36PM ( 1 hour ago )
2 men set to be cleared in the 1965 killing of Malcolm X
Two of the three men convicted in the assassination of Malcolm X are to be cleared after insisting on their innocence since the 1965 killing
6:30PM ( 1 hour ago )