Abortion Clinics Push Supreme Court To Fast-Track Challenge to Texas Law

Providers are asking the justices to hear their case before lower courts review

Kevin Daley • September 24, 2021 1:40 pm

Abortion clinics in Texas are asking the Supreme Court to fast-track their challenge to the state’s law banning abortion as early as six weeks.

In a rarely seen maneuver, the providers asked the justices to leapfrog normal judicial process and decide whether the Texas Heartbeat Act is constitutional before lower courts have a chance to review it. The clinics say it’s crucial the Court hears their case soon, as copycat measures proliferate across the country.

“Thousands of Texans are now unable to exercise their federal constitutional right to obtain an abortion,” the petition reads. “Those with the means to do so are being forced to travel hundreds of miles out of state to exercise a constitutional right.”

Lawmakers on both sides of the abortion issue are scrambling following successful implementation of the Heartbeat Act, which has ended most legal abortions in the nation’s second-most populous state. Republican lawmakers in six states are reportedly considering similar bills. The House of Representatives will vote Friday on legislation that guarantees abortion access through federal law in the event Roe v. Wade is overturned. The bill will likely not pass the Senate, but it reflects a Democratic sense that abortion could rejuvenate their moribund political prospects amid multiple crises.

The seldom-used procedure the providers invoked is called “certiorari before judgment.” The justices prefer for lower courts to review cases before they do, so that they have the benefit of a thorough factual record and well-reasoned opinions to guide their deliberations. The Court’s rules, however, allow litigants to cut to the front of the line if their case is “of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination.”

Such petitions usually face long odds. The Court has granted these requests in select and extraordinary instances, and then usually at the behest of the executive branch. The justices are already set to hear a direct challenge to Roe v. Wade in December.

The last time the Court granted review before judgment was January 2019, when the Trump administration asked the Supreme Court to decide whether it could include a citizenship question on the 2020 census form. An appeals court had yet to weigh in on the matter, which usually takes months, and the government faced a hard deadline to finalize the form and print it.

Other examples from the Court’s history include the Nixon tapes case, and a World World II-era challenge to the president’s power to try German saboteurs by military tribunal.

The Heartbeat Act is difficult to attack by design. Government officials responsible for enforcement are the usual targets of a legal challenge to a given law. If courts strike down the statute, they will issue an order forbidding those same officials from enforcing it. But under Texas’s law, private citizens are responsible for enforcement via civil lawsuits. Therefore, it’s difficult for the clinics and courts alike to home in on a single target and permanently enjoin the law.

The Supreme Court on Sept. 1 voted 5-4 to allow the Texas law to take effect. In an unsigned statement, the Court cited “complex and novel antecedent procedural questions” as their reason for denying an emergency appeal from clinics in the state.

Those questions are still unresolved three weeks on, so nothing has changed since the Court’s last encounter with the case. The providers emphasize, however, that it will take years for cases to run their ordinary course in the courts, meaning abortions will not be available in Texas for the foreseeable future unless the justices intervene now.

“The few cases pending in state court could take months, if not years, to wend through the state-court system before they could provide statewide relief,” the petition reads.

One challenge to the heartbeat law is pending before the Fifth U.S. Circuit Court of Appeals. Arguments in that matter are scheduled for December, and a decision would follow some months thereafter in 2022. Only then could providers appeal to the Supreme Court.

If the Court takes up this week’s appeal, arguments will likely take place in December alongside a second abortion case from Mississippi. That dispute, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law that bans abortion after 15 weeks.

The case is Whole Woman’s Health v. Jackson.