WASHINGTON — The Texas abortion law headed to the Supreme Court this week in what could result in a monumental referendum on the future of abortion in the United States.
The nation's highest court heard arguments Monday morning from Texas officials and the U.S. Department of Justice, which is challenging the law. A group of abortion providers is also challenging the Texas law.
It's not clear when the court might issue a ruling on the Texas abortion law, though, to this point, the court has fast-tracked the case to the docket.
WFAA will have ongoing coverage of the Supreme Court arguments this week, live from Washington, D.C., including live audio of the arguments.
Re-listen to the full oral arguments below:
In the meantime, how did we end up here? And what's at stake?
Let's review what makes the Texas law - and its impact - so unique:
What is the Texas abortion law?
Texas Senate Bill 8, known as SB 8 or the so-called "Heartbeat Bill," bans abortions after a fetal heartbeat has been detected, which can happen as early as six weeks, before many women know they are pregnant.
Other states have passed similar "heartbeat" bills, though the Texas law has an added element: Private citizens anywhere can sue anyone who helps someone get an abortion in Texas after six weeks, including abortion providers and people who help someone get an abortion. The person filing the lawsuit would not need to have a connection to the person or provider they are suing.
The new law does not have any exemptions for survivors of rape or incest. Gov. Greg Abbott faced backlash over this issue in September, when he defended that element of the law by saying Texas' goal "is to eliminate rape."
“Let’s make something very clear, rape is a crime, and Texas will work tirelessly to ensure we eliminate all rapists from the streets of Texas,” Abbott said.
When did the Texas abortion law go into effect?
The bill was passed by Texas legislators in May and signed into law by Gov. Greg Abbott. The law took effect Sept. 1.
Why is the Texas abortion law unique?
At least 12 other states have passed similar bans on early abortions, according to the Associated Press, but all were blocked from going into effect.
The Texas law is unique in how it will be enforced: through private citizens filing lawsuits against anyone involved in an abortion. The law entitles $10,000 to anyone who files a successful lawsuit.
What has been the immediate impact?
The Texas Policy Evaluation Project at the University of Texas this week released data that showed abortions in Texas were down 50% in September, compared to September of last year.
Their data also indicated that wait times for abortion appointments in neighboring states were mostly longer compared to July 2020, when the most recent data was available.
How did the Texas abortion law end up in the Supreme Court?
The Biden administration challenged the Texas abortion law and scored an early victory. In October, U.S. District Judge Robert Pitman ruled for the Justice Department, putting the law on hold and allowing abortions to resume.
Texas officials immediately filed an appeal to the 5th U.S. Circuit Court of Appeals, which ruled in favor of Texas and allowed the law back into effect.
That's when the Biden administration stepped in, asking the Supreme Court to halt the abortion law and reverse the 5th Circuit's decision.
The Supreme Court voted 5-4 against halting the law - with Chief Justice John Roberts siding with the Court's liberal wing - but the justices agreed to hear the case in early November.
Justice Sonia Sotomayor wrote that she would have blocked the law now.
“The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now,” Sotomayor wrote.
How will the Supreme Court analyze the Texas abortion law?
A key aspect of the Supreme Court's decision will likely focus on the procedural maneuvers involved in the Texas law, namely the ability of private citizens to enforce the law - not the government. That element of the law makes it difficult to challenge in court, experts have said.
Stephen Valdeck, a constitutional law professor at the University of Texas School of Law, said the problem is that the Texas law is not abortion-specific on the procedural side.
“So, whatever we think about the right to an abortion - whether it should even be a right to an abortion - I'm troubled by a precedent where any state legislature can frustrate the enforcement of any constitutional right, maybe one that we like more, or not, just by pulling the move Texas has pulled here,” Vladeck told WFAA on the latest episode of Y'all-itics.
In other words, if the Texas law is upheld, what’s to stop other state legislatures from passing, say, a ban on guns by allowing citizens to enforce it, thereby making it more difficult to test the constitutionality of the law itself?
Listen to the full episode of Y'all-itics:
What is the argument from Texas?
Earlier this month, Texas urged the Supreme Court to leave the abortion law in place, saying the challenge by federal officials "is extraordinary in its breadth and consequence, having an impact on precedents that have existed far longer than any right to abortion has been recognized," according to its court filing.
Texas' argument has hinged on the procedural aspect, that since private citizens, not the state, would be enforcing the law, then it can't be blocked by a federal court.
"Neither the federal government’s views on who should be required to defend SB 8 nor the abortion industry’s preference in forum transforms SB 8 into a public harm," Texas officials wrote in the court filing. "If so, any industry could call on the federal government to come to its rescue whenever that industry feared liability in state court."
What is the argument from the U.S. Department of Justice?
U.S. officials in their court filing this month called the Texas law a "gambit" that was "designed to nullify this Court's precedents and to shield that nullification from judicial review."
"If Texas is right, no decision of this Court is safe. States need not comply with, or even challenge, precedents with which they disagree," the filing said. "They may simply outlaw the exercise of whatever rights they disfavor; disclaim state enforcement; and delegate to the general public the authority to bring harassing actions threatening ruinous liability. On Texas’s telling, no one could sue to stop the resulting nullification of the Constitution."
What is the makeup of the Supreme Court?
The court currently has six conservative justices - John G. Roberts, Jr.; Clarence Thomas; Samual Alito, Jr.; Neil M. Gorsuch; Brett M. Kavanaugh; and Amy Coney Barrett - and three liberal justices - Stephen G. Breyer, Sonia Sotomayor; and Elena Kagan.
What's next?
There is a scenario in which the Supreme Court strikes down the Texas law but still limits abortion. That's because another high-stakes abortion case out of Mississippi will be heard by the court in December.
Mississippi law bans most abortions after 15 weeks. The case, Dobbs v. Jackson Women's Health Org, was brought to the Supreme Court after a 5th U.S. Circuit Court of Appeals panel blocked enforcement of the law citing a conflict with Roe v. Wade, along with abortion rulings that followed that landmark decision.
A key question that will come before the court: Are all pre-viability prohibitions on elective abortion unconstitutional?