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  • Writer's pictureDani Brinberg

An Update on the Texas Abortion Ban

The most restrictive abortion law in the country, the Texas abortion ban, took control of U.S. media about two months ago. Updated news continues to circulate now as the law is challenged. The law was met with a large amount of pushback from pro-choice citizens who believe that a woman should be able to get an abortion after the six week timeline mandated in the new law. Opponents of the law argue that some women don’t even know they’re pregnant at this point in the pregnancy. The law also received a lot of support, however, especially from pro-life Texans. Beyond these initial reactions, recent news covers what is being done about the law in our higher courts and government.

In the earlier weeks of October, the Biden administration asked the Supreme Court to block the law and even told the justices that they could rule on the law’s constitutionality this term before lower courts have made their decisions. While the Supreme Court did take the rare step of fast-tracking some cases brought against the ban, on October 22nd, the justices officially allowed the law to remain in effect at least until they return to the case next month. However, the judges also said that they were eager to hear arguments in the case, which will happen on November 1st.

The Texas Abortion Ban undoubtedly challenges the existing Supreme Court precedent under Roe v. Wade, but the situation is much more complicated. This is in part because conservatives currently hold a 6-3 majority in the nation’s highest court, but also because the law has one key component that makes it different from all other states’ attempts to limit abortion. The Texas law leaves its enforcement to citizens who, under the law, can now sue abortion providers or anyone who assists a woman in getting an abortion.

In other states’ attempts to ban abortion, the state has enforced the law, so suing lawmakers has been a direct way to counter the law, but the Texas ban is not so easily countered. Additionally, the court is hesitant to intervene because no Texan has actually sued someone under the law thus far. The argument that the six weeks in the law lies before some women are aware of their pregnancy does have some legal support, because Roe v. Wade doesn’t allow states to ban abortions after any point under 24 weeks. However, there is a possibility that the Supreme Court will soon reconsider this precedent.

So what exactly is the Supreme Court deciding on? We would think that they are evaluating the constitutionality of the law, but this is not the case. Instead, the judges are considering whether or not abortion providers and the Justice Department will have the ability to challenge the law in federal court. Thus, the court will review only the procedural merits of the cases, not the constitutionality of abortion.

“harm to women seeking abortion care and providers of such care in Texas.”

What will happen next is difficult to predict. Justice Sonia Sotomayor gave us a court opinion on October 22nd, saying that the court will take up cases from abortion providers and the U.S. Department of Justice on November 1st, but won’t make any final decisions before then. She also disclosed that she does not agree with the court’s decision to keep the law in place as the court considers the cases because of “harm to women seeking abortion care and providers of such care in Texas.”

Again, the reviewing of the law by the Supreme Court will focus mostly on the constitutionality of the enforcement of the law, rather than the substance of the law itself. In the case that the court rules the enforcement of the law unconstitutional, there is a chance that the law would return to the 5th Circuit, where it could possibly be blocked. However, it is unlikely that the law would be blocked completely at this stage, and either way, the 5th Circuit won’t hear its oral arguments until December.

There are a lot of unanswered questions in this very complicated situation. Will the court rule the enforcement of the law unconstitutional? And what will happen if it is unconstitutional? Will the court block the law or reform its enforcement mechanism? Or will the court go in a completely different direction and ultimately eliminate the constitutional right to abortion altogether? The law’s unusual format makes it difficult for the court to block, and even more difficult for us to predict what will happen next.


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