Supreme Court told it should reconsider Roe v. Wade if it takes up Texas abortion law challenge

A pro-choice activist holds a sign outside the U.S. Supreme Court in Washington, D.C., U.S., on Monday, Oct. 4, 2021.

Stefani Reynolds | Bloomberg | Getty Images

The Supreme Court should reconsider decades-old precedent protecting abortion rights if it decides to take up a legal challenge to a Texas law that starkly curtails the procedure, Texas officials argued Thursday in briefs to the high court.

The arguments were filed in response to separate petitions challenging the restrictive Texas law, which bans most abortions after as early as the sixth week of gestation, a time when many women are not yet aware they are pregnant.

Critics say the law violates the Constitution and was designed to evade judicial scrutiny by delegating enforcement to private citizens, who can file civil lawsuits against anyone who “aids or abets” in an abortion.

Last month, abortion-rights advocates and providers in Texas asked the Supreme Court to hear their case against S.B. 8 before final judgment in a lower appeals court “because of the urgency of the harm” caused by the law. The court agreed Monday to consider that expedited appeal request.

In response, Texas officials said that the Supreme Court should deny that request, noting that the 5th Circuit of Appeals is due to hear arguments in the case next month.

The Department of Justice, which is suing Texas over the law, on Monday asked the nine justices to vacate an appeals court’s decision to allow the law to stay in effect during litigation. The DOJ’s brief also asked for its legal challenge to be added to the court’s calendar for briefing and argument this term.

Texas said in response that the law should stay in effect, and argued that the DOJ lacks a stake in the outcome that would allow it to sue, known as standing. “The federal government cannot get an abortion, and the Constitution does not assign it any special role to protect any putative right to abortion,” Texas argued.

The court ordered that responses to both of those petitions were due by Thursday at noon. In each, respondents argued that if the court takes up the case, it should re-examine the precedents set by rulings from 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey, two cases that protect abortion rights before fetal viability.

If the Supreme Court agrees to take up the fast-tracked appeal from the abortion-rights advocates, then “the Court should also reconsider Roe and Casey,” Texas officials argued in their brief.

In response to the DOJ’s petition, Texas argued that “the Court erred in recognizing the right to abortion in Roe and in continuing to preserve it in Casey.”

“If it reaches the merits, the Court should overturn Roe and Casey and hold that SB 8 does not therefore violate the Fourteenth Amendment” of the Constitution, the officials wrote.

A pivotal abortion case challenging Roe is already set for oral argument on Dec. 1. Proponents of abortion rights fear the court, with its 6-3 conservative majority, could weaken or abolish those protections.

The Supreme Court last month voted 5-4 against an emergency bid to temporarily block S.B. 8 from being enforced. That ruling was “not based on any conclusion about the constitutionality of Texas’s law,” the majority said in its opinion, which came hours after the law took effect Sept. 1.

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