On Monday, the Supreme Court heard two procedural challenges to SB8, Texas’s six-week abortion ban that was enacted on September 1. The Court heard both United States v. Texas and Whole Woman’s Health v. Jackson, both challenging the law.
US Solicitor General Elizabeth B. Prelogar argued that the law is unconstitutional and that if upheld, “no constitutional law is safe.”
In the same vein, Justice Elena Kagan, Justice Stephen Breyer, and Justice Sonia Sotomayor brought up that upholding the law would allow all state legislatures to “pass laws invalidating other constitutional rights such as those related to same-sex marriage, gun ownership, and religious freedom.”
“We would live in a very different world from the world we live in today. Essentially, we would be inviting states, all 50 of them, with respect to their own preferred constitutional rights, to try to nullify the law this court has laid down,” Justice Kagan said.
The Texas law is unique, as it was designed specifically to avoid judicial scrutiny, by deputizing private citizens to sue abortion providers and anyone who helps patients access abortion care after six weeks.
“The state designed S.B. 8 to ensure that the threat of enforcement suits will deter covered abortions, such that enforcement suits and the opportunity to raise a constitutional defense will be rare,” argued the Justice Department.
“So far, it has worked. The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the Court has recognized for half a century,” said the Justice Department.
“Yet Texas insists that the Court must tolerate the State’s brazen attack on the supremacy of federal law because S.B. 8’s unprecedented structure leaves the federal Judiciary powerless to intervene.”
As most people don’t know that they are pregnant at six weeks, the law has barred over 85% of abortions in Texas. Many states have passed six-week bans previously, but they are usually blocked, so SB8 is the first six-week ban to be enacted.
Many patients have had to travel out of state to access the care they need, but for some, traveling is an impossible task– particularly for undocumented folks who risk dangerous interactions with border patrol checkpoints.
On December 1, the Supreme Court will hear another abortion ban case, this one about Mississippi’s 15-week abortion ban.
Sources: Washington Post 11/1/21; Ms. Magazine 11/1/21; The World 9/2/21
