Texas needs five Supreme Court justices to keep its abortion ban in place and right now it likely has three of the five necessary to do so. The ban has already saved thousands of babies from abortion.
The Supreme Corut heard oral arguments today in two cases — filed by Joe Biden and Texas abortion companies — seeking to temporarily block the Texas abortion ban while their lawsuits continue in lower courts. Judging by their past support for keeping the ban in place and the tenor of their questions today, Justice Clarence Thomas, Samuel Alito and Neil Gorsuch all appear likely to allow the ban to continue while the case proceeds.
With Chief Justice John Roberts likely joining the liberals on the court in voting to block the ban, that leaves Justices Brett Kavanaugh and Amy Coney Barrett as the unknowns. Although they agreed with upholding the ban previously, their questions during oral arguments today made it appear they could reconsider.
Justice Brett Kavanaugh asked Texas Solicitor General Judd Stone if other states could fashion laws with private rights of action against other Constitutional rights — even though aboriton is not a right found in the Constitution.
“There’s a loophole that’s been exploited here or used here,” Kavanaugh said. “It could be free speech rights. It could be free-exercise-of-religion rights. It could be Second Amendment rights.”
“So we can assume that this will be across the board equally applicable to all constitutional rights?” Kavanaugh asked.
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Barrett was worried about provisions in the law that make it difficult for those who assist killing babies in abortions to defend themselves — though unborn children have no mechanisms to defend themselves either.
“I’m wondering if, in the defensive posture in state court, the constitutional defense can be fully aired,” Barrett said.
Justices Samuel Alito and Neil Gorsuch were the most vocally supportive of Texas’ law and skeptical of the challenges against it, and Justice Alito took pro-abortion attorneys to task for wanting to block clerks and judges from doing their jobs.
“I think we have to be concerned about the implications of the mechanisms that you propose … It’s unprecedented and it is contrary to our system of federal law to enjoin a state judge from even hearing a case. When has that been done and how can that be justified?”
But even Roberts had a problem with abortion companies suing judges to stop the abortion ban.
“You might appreciate that the idea of suing judges caught our attention,” Chief Justice John Roberts remarked dryly. “That seems to me to raise a real problem … It’s hardly traditional to get injunctions against judges, injunctions against clerks, injunctions against everybody, right?”
Overall, the justices were less supportive of the suit Biden brought for the federal government than the suit brought by abortion businesses,because the abortion companies have more standing in the case than the government.
The Supreme Court has already turned back a request from Planned Parenthood and abortion businesses to temporarily block the ban, but today’s oral arguments are the first time SCOTUS will evaluate a request to block the ban in such a manner. Earlier this year, the abortion industry brought their legal challenge in Whole Woman’s Health v. Jackson. Once this effort proved unsuccessful in blocking the law, the Biden administration took the unprecedented step of challenging the state law themselves in United States v. Texas.
The court will not consider the constitutionality of the abortion ban directly but will examine whether Biden and abortion companies have standing to block the ban in the first place since the ban does not require public officials to enforce it, but relies on the ability of private citizens to file lawsuits against abortionists and others who assist in killing unborn babies.
Texas Right to Life Legislative Director John Seago told LifeNews.com that he believes the Supreme Court will decide a second time to not block the ban.
“We are optimistic as the Supreme Court examines these legal challenges to the Texas Heartbeat Act. Not only have the justices continued to show judicial restraint by allowing the law to continue to save lives, but they are committed to taking these procedural and standing questions seriously, unlike the federal district court,” he said. “We are hopeful the justices will clarify that these current legal attacks on this life-saving law are invalid.”
“Texas Right to Life continues to support the Texas attorney general’s team, which has proven time and time again that the federal government does not have the authority to ask a court to block a state law simply because the policy differs from their own ideological commitments. The Department of Justice has failed to show that they have legal standing to bring this case since the Texas Heartbeat Act does not threaten the federal government with irreparable harm,” he added.
Texas officials argue the Supreme Court can’t overturn the law and must block the request for a temporary injunction against it because they are not charged with enforcing the abortion ban under the private right of action provisions of the law allowing for private lawsuits to be filed against abortionists and those who assist in killing babies.
In a 93-page brief, the officials argued that since the Texas law is enforced by private citizens instead of the state government, both lawsuits were wrongly filed against them. “No state executive official actually enforces [the law],” Texas wrote, “making the injunction an improper attempt to enjoin a law rather than a person.”
But the Biden administration in its own court filing slammed that enforcement mechanism as a “brazen attack on the supremacy of federal law,” arguing that “if Texas is right, no decision of this Court is safe.”
And a group of abortion-rights providers and advocates in a separate brief urged the high court to reject Texas’s “cynical strategy” to avoid judicial review.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett made up the majority in the decision to not block the ban the first time.
The court, in its order, said it would consider the following questions: whether “the state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil action”; and can “the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.”
When the high court turned back the previous request to block the ban, Justice Sonia Sotomayor dissented and said the Texas abortion ban should be blocked while the lawsuit continues. She falsely called killing babies in abortions health care and made it appear that pregnant women are harmed if they can’t get abortions — even though abortion harms women in a myriad of ways and mothers who give birth experience more joy and less harm by keeping their baby.
“The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now,” she wrote. “These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether.”
The Supreme Court needs just 4 votes to agree to review a case but five votes to issues a ruling — meaning SCOTUS reached those two thresholds to both review as well as to decide to leave the Texas abortion ban in place. In a prior ruling on the Texas abortion companies’ request to block the ban, the Supreme Court ruled 5-4 to allow to to stay in place, with Chief Justice John Roberts and the court’s three liberals dissenting and saying it should be blocked.
Texas Attorney General Ken Paxton and his team of attorneys say the federal government has no legal standing in the case and no right to overturn the Texas law because it hasn’t suffered any injuries from it:
Federal courts are not “roving commissions assigned to pass judgment on the validity of the Nation’s laws.”
The United States’ lawsuit against Texas 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. Nevertheless, the federal government asks this Court to apply the “ad hoc nullification machine” that pushes aside any doctrine of constitutional law that stands in the way of abortion rights.
Specifically, it asks the Court to ignore (among other things) requirements of justiciability, standing, and a cognizable cause of action—all so that the Court can reach the merits of the government’s challenge to Texas’s Senate Bill 8 (SB 8). The Court should decline this request. Under binding case law, the federal government is not adverse to Texas merely because it thinks a Texas law is unconstitutional. And it lacks standing because it has not been injured by SB 8. The federal government cannot get an abortion, and the Constitution does not assign it any special role to protect any putative right to abortion.
The hearing comes after a new poll found a majority of Texas residents support the ban to protect unborn children.
The Houston Chronicle reports a new poll from the University of Houston/Texas Southern University found a solid 55 percent of Texas residents support the life-saving legislation – in spite of the massive negative publicity, misinformation campaigns and international condemnation.
According to the October poll, 55 percent of Texans support the law, while 46 percent oppose it. Interestingly, 23 percent said they believe abortions should be allowed only in cases of rape, incest or threats to the mother’s life; however, three-fourths of those people also said they support the heartbeat law even though it only allows exceptions when the mother’s life is at risk, the Chronicle reports.
Broken down by racial groups, support for the pro-life law was strongest among Latino residents (58 percent), compared to white residents (55 percent) and black residents (47 percent). Additionally, 59 percent of men and 52 percent of women said they support the law.
The sharpest divide was between Republicans and Democrats, with 74 percent and 38 percent supportive, respectively. A majority of independent voters (55 percent) also support the law.
University of Texas at Austin researchers found a 50-percent drop in abortions in September, compared to the same month in 2020.
Abortion facilities reported 2,164 abortions in September 2021, down from 4,313 in September 2020, according to the new research. That equates to 2,149 babies’ lives.
Meanwhile, pro-life advocates are reaching out to pregnant women across Texas with compassion and understanding, offering resources and emotional support to help them and their babies. Earlier this year, state lawmakers increased support for pregnant and parenting mothers and babies, ensuring that they have resources to choose life for their babies.
Other polls show Americans support abortion bans when the unborn baby’s heart begins beating.
A recent Saint Louis University/YouGov poll found 56 percent of Missourians agree that the state should prohibit abortions once an unborn baby’s heartbeat is detectable after eight weeks of pregnancy, including 57 percent of women. Similarly, an April poll by the University of Texas-Austin found that Texans support a six-week abortion ban. According to the poll, 49 percent support making abortions illegal after six weeks of pregnancy, while 41 percent oppose it.
A national 2019 Hill/HarrisX poll also found that 55 percent of voters said they do not think laws banning abortions after six weeks – when an unborn baby’s heartbeat is detectable – are too restrictive.