8 min
Supreme Court Hears Oral Arguments in 2 Texas Heartbeat Act Cases. Here Are the Top Takeaways Old Guard Audio ❗
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Supreme Court Hears Oral Arguments in 2 Texas Heartbeat Act Cases. Here Are the Top Takeaways. Thomas Jipping / @TomJipping / Sarah Parshall Perry / @SarahPPerry / November 01, 2021
Texas Attorney General Ken Paxton speaks outside of the U.S. Supreme Court in Washington, D.C., Nov. 1. (Photo: Mandel Ngan/AFP/Getty Images)
COMMENTARY BY Thomas Jipping@TomJipping
Thomas Jipping is deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation.
Sarah Parshall Perry@SarahPPerry
Sarah Parshall Perry is a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
We are only a month into the Supreme Court’s 2021-22 term and abortion already appears to be this season’s defining topic.
The court heard arguments in two cases on Monday related to the Texas Heartbeat Act, which bans most abortions after the fetal heartbeat is detected (which is usually about six weeks after conception). And in just one month, the court will hear arguments in Dobbs v. Jackson Women’s Health Organization, which challenges the constitutionality of Mississippi’s ban on most abortions after 15 weeks.
While Dobbs v. Jackson Women’s Health Organization focuses on the constitutional merits of the Mississippi ban, the Texas cases focus on how the legislature sought to shield the Texas abortion ban from legal challenge in its Heartbeat Act.
Ordinarily, parties that opposed the law would file a lawsuit before it was scheduled to go into effect, asking for an injunction to stop any enforcement while its constitutionality is litigated. That’s what happened in Dobbs v. Jackson Women’s Health Organization. The Texas law, however, says that it can be enforced only by “private civil actions” and removes public officials (those normally tasked with the enforcement of state and federal law) from the enforcement process on the Texas Heartbeat Act altogether. As a result, the law went into effect as scheduled on Sept. 1.
In Whole Woman’s Health v. Jackson, abortion providers sued to prevent state courts from handling any private civil actions to enforce the Texas abortion ban. The U.S. Court of Appeals for the 5th Circuit put the Whole Woman’s Health v. Jackson case on hold, and on emergency appeal, the Supreme Court left the hold in place, but said that the case raised “serious questions” about the law’s constitutionality.
Even though the 5th Circuit scheduled arguments on the issue of whether federal courts could enjoin state courts from handling these lawsuits for early December, the plaintiffs appealed again to the Supreme Court by way of a rarely used procedural move known as “certiorari before judgment.”
In United States v. Texas, the federal government sued Texas, also asking that the abortion ban be put on hold while its constitutionality is litigated. Like the abortion providers did in Whole Woman’s Health v. Jackson, the Biden administration did not wait for the 5th Circuit to rule, but appealed directly to the Supreme Court.
So, on Nov. 1, the Supreme Court heard arguments in two cases—one brought by abortion providers and one by the federal government—involving procedural issues that must be cleared up before the constitutional merits of the Texas abortion ban can even be addressed.
In Whole Woman’s Health v. Jackson, the question is whether Texas can insulate its state law from federal court review by delegating enforcement to the public instead of state officials.
In United States v. Texas, the question is whether the federal government has an interest in the case sufficient enough to sue state courts and officials to prevent them from enforcing the law.
Texas argues that its new law does not prevent the courts from deciding this underlying constitutional issue. The enforcement mechanism simply prevents blocking the law before it is enforced. But abortion pro
Supreme Court Hears Oral Arguments in 2 Texas Heartbeat Act Cases. Here Are the Top Takeaways. Thomas Jipping / @TomJipping / Sarah Parshall Perry / @SarahPPerry / November 01, 2021
Texas Attorney General Ken Paxton speaks outside of the U.S. Supreme Court in Washington, D.C., Nov. 1. (Photo: Mandel Ngan/AFP/Getty Images)
COMMENTARY BY Thomas Jipping@TomJipping
Thomas Jipping is deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation.
Sarah Parshall Perry@SarahPPerry
Sarah Parshall Perry is a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
We are only a month into the Supreme Court’s 2021-22 term and abortion already appears to be this season’s defining topic.
The court heard arguments in two cases on Monday related to the Texas Heartbeat Act, which bans most abortions after the fetal heartbeat is detected (which is usually about six weeks after conception). And in just one month, the court will hear arguments in Dobbs v. Jackson Women’s Health Organization, which challenges the constitutionality of Mississippi’s ban on most abortions after 15 weeks.
While Dobbs v. Jackson Women’s Health Organization focuses on the constitutional merits of the Mississippi ban, the Texas cases focus on how the legislature sought to shield the Texas abortion ban from legal challenge in its Heartbeat Act.
Ordinarily, parties that opposed the law would file a lawsuit before it was scheduled to go into effect, asking for an injunction to stop any enforcement while its constitutionality is litigated. That’s what happened in Dobbs v. Jackson Women’s Health Organization. The Texas law, however, says that it can be enforced only by “private civil actions” and removes public officials (those normally tasked with the enforcement of state and federal law) from the enforcement process on the Texas Heartbeat Act altogether. As a result, the law went into effect as scheduled on Sept. 1.
In Whole Woman’s Health v. Jackson, abortion providers sued to prevent state courts from handling any private civil actions to enforce the Texas abortion ban. The U.S. Court of Appeals for the 5th Circuit put the Whole Woman’s Health v. Jackson case on hold, and on emergency appeal, the Supreme Court left the hold in place, but said that the case raised “serious questions” about the law’s constitutionality.
Even though the 5th Circuit scheduled arguments on the issue of whether federal courts could enjoin state courts from handling these lawsuits for early December, the plaintiffs appealed again to the Supreme Court by way of a rarely used procedural move known as “certiorari before judgment.”
In United States v. Texas, the federal government sued Texas, also asking that the abortion ban be put on hold while its constitutionality is litigated. Like the abortion providers did in Whole Woman’s Health v. Jackson, the Biden administration did not wait for the 5th Circuit to rule, but appealed directly to the Supreme Court.
So, on Nov. 1, the Supreme Court heard arguments in two cases—one brought by abortion providers and one by the federal government—involving procedural issues that must be cleared up before the constitutional merits of the Texas abortion ban can even be addressed.
In Whole Woman’s Health v. Jackson, the question is whether Texas can insulate its state law from federal court review by delegating enforcement to the public instead of state officials.
In United States v. Texas, the question is whether the federal government has an interest in the case sufficient enough to sue state courts and officials to prevent them from enforcing the law.
Texas argues that its new law does not prevent the courts from deciding this underlying constitutional issue. The enforcement mechanism simply prevents blocking the law before it is enforced. But abortion pro
8 min