Last Friday the U.S. Supreme Court handed down a pair of orders on Texas’ Senate Bill 8 (SB 8), a Texas law that bans abortion once a fetal heartbeat is detected, which typically occurs anywhere between five and eight weeks into a pregnancy. The orders concern the case Whole Woman’s Health v. Jackson, a lawsuit brought by abortion providers, and the case United States v. Texas, which was filed by President Biden’s administration.
The court gave the parties in the case until this past Wednesday to file their briefs. The cases are set for oral argument on Monday, November 1, 2021. This is an unusually expedited schedule, which signals the Court is eager to resolve the issue of whether these cases can be brought by the abortion clinics and the Biden administration.
Who decides whether a case will be expedited by the Court?
In general, justices of the Supreme Court have sole discretion about which cases they will hear. No one—including Congress or the president—can force them to review a case that has been decided by an appeals court. There is also nothing that tells the justices how they must decide which cases they will take, so they rely on custom.
The Supreme Court has adopted the custom known as the “rule of four”—a case will be reviewed by the Court if four of the nine justices so decide. In the case of Ferguson v. Lines (1957), Justice Felix Frankfurter explained the rule of four:
“The ‘rule of four’ is not a command of Congress. It is a working rule devised by the Court as a practical mode of determining that a case is deserving of review, the theory being that if four Justices find that a legal question of general importance is raised, that is ample proof that the question has such importance. This is a fair enough rule of thumb on the assumption that four Justices find such importance on an individualized screening of the cases sought to be reviewed.”
If four justices decide they will take a case, they issue a writ of certiorari, an order issued by the Supreme Court directing the lower court to transmit records for a case that it will hear on appeal. The justices tend to only accept cases that will affect the entire country, rather than just the individuals involved, or that clarify legal issues that are of constitutional significance.
The Court hears oral arguments in cases from October through April, and are usually released beginning in June. All opinions of the Court are, typically, handed down by the last day of the Court’s term (the day in late June/early July when the Court recesses for the summer). With the exception of this deadline, there are no rules concerning when decisions must be released.
What are the issues the Court is looking at with SB 8?
The 1908 case of Ex Parte Young ruled that plaintiffs in lawsuits can seek injunctions against government officials charged with enforcing potentially unconstitutional laws. Based on this precedent, abortion providers attempeted to sue a numer of state officials in Texas for enforcing SB 8. But SB 8 was intentionally written so that the enforcement mechanism would be civil lawsuits brought by private citizens.
The State of Texas therefore claims that it has no role in enforcement, and thus state officials cannot be sued. Since no state officer can enforce the law, it is unclear whether anyone can be sued to block the law from taking effect.
The question the Supreme Court is being asked to consider in Whole Woman’s Health v. Jackson is whether a state can insulate from federal-court review a law that prohibits the exercise of an established constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.
The question the Supreme Court is being asked to consider in United States v. Texas is whether the Biden administration may 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 Texas Senate Bill 8 from being enforced.
How does this affect SB 8?
It doesn’t—at least for now. As Justice Sotomayor lamented in her dissent when the recent order was handed down, the Court has once again decided not to block SB 8 from being enforced. The law will remain in effect at least until a decision is handed down on these pending cases.
How soon could the Court rule on this issue with SB 8?
The Court could hand down a ruling within a few weeks at the earliest. At the latest, the Court could decide to hold the ruling till the end of its term in late June or early July.
How does this affect the future of abortion?
Although SB 8 has received the most attention lately, it is not the primary case that will determine the future of abortion in America. The Supreme Court will also be hearing the state of Mississippi’s petition in the case of Dobbs v. Jackson Women’s Health Organization. That case involves a 2018 law passed in Mississippi called the Gestational Age Act, which allows abortions after 15 weeks of gestational age only in medical emergencies or instances of severe fetal abnormality.
While the law has been blocked by lower courts as inconsistent with current precedent related to abortion, the court agreed to take up the question of whether all pre-viability prohibitions on elective abortions are unconstitutional. If pre-viability prohibitions are declared constitutional, then lawmakers could essentially overturn Roe v. Wade and make laws such as SB 8 unnecessary.