Wednesday, October 26, 2011

Legislation - Judicial Decisions - Foreign Affairs

SILVIA STAGG




The Supreme Court hints that it may allow a challenge to the Texas abortion law.



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Capitol Police officers stand guard as abortion rights demonstrators participate in a protest at the Supreme Court.
Capitol Police officers stand guard as abortion rights demonstrators participate in a protest at the Supreme Court.
Credit...
Tom Brenner for The New York Times

After almost three hours of lively arguments, a majority of the justices seemed inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a challenge to a Texas law that has sharply curtailed abortions in the state.

That would represent an important shift from a 5-to-4 ruling in September that allowed the law to go into effect. Justices Brett M. Kavanaugh and Amy Coney Barrett, who were in the majority in that ruling, asked questions suggesting that they thought the novel structure of the Texas law justified allowing the providers to challenge it.

Justice Kavanaugh said that might amount to closing a loophole. Justice Barrett said the law was structured to prevent the providers from presenting a “full constitutional defense.”

Such a decision would not conclude the case or address whether the law itself is constitutional. Instead, it would return the case to lower courts for further proceedings. It was, moreover, not clear whether the court would temporarily block the law while the case moved forward if it allowed either the providers or the administration to sue.

The law, which went into effect on Sept. 1, was drafted to evade review in federal court, a goal the state has so far achieved. The law, which bans most abortions after about six weeks and includes no exceptions for pregnancies resulting from rape or incest, has caused clinics in the state to turn away many women seeking the procedure.

Charlie Savage
Nov. 1, 2021

Top lawyers dueled over Texas’ novel anti-abortion law.

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Texas’ solicitor general, Judd Stone, left; an attorney for the Center for Reproductive Rights, Marc Hearron, center; and the federal solicitor general, Elizabeth Prelogar, right.
Texas’ solicitor general, Judd Stone, left; an attorney for the Center for Reproductive Rights, Marc Hearron, center; and the federal solicitor general, Elizabeth Prelogar, right. Federalist Society; Dayna Smith/Center for Reproductive Rights; Shutterstock


The United States solicitor general and a lawyer for Texas abortion providers urged the Supreme Court on Monday to block enforcement of the state’s anti-abortion law, while a top lawyer for Texas told the justices they had no power to do so.

Over about three hours of arguments that sometimes delved into highly technical matters, the Supreme Court wrestled with whether it could or should issue an injunction barring Texas state courts from hearing suits filed under the law, known as Senate Bill 8.

The law, which bars most abortions after about six weeks, has raised novel issues because it is not clear whom a court could order not to carry it out. It relies not on government officials but on private citizens to enforce it, with $10,000 bounties for successful lawsuits.

Arguing that the Texas law was blatantly unconstitutional and was chilling people’s exercise of their rights, Marc A. Hearron, a lawyer with the Center for Reproductive Rights, which represents the providers, said the Supreme Court should enjoin clerks of Texas state courts from accepting such lawsuits.

But Texas’ solicitor general, Judd Stone II, argued that it would be unconstitutional for the federal judiciary to enjoin a state court or state judge from hearing such lawsuits. He cited a 1908 case called Ex parte Young, which said state officials could be sued in federal court to block enforcement of unconstitutional state laws but also said that this mechanism could not be used to “restrain the state court from acting in any case brought before it.”

The federal solicitor general, Elizabeth Prelogar, argued that the principle laid out in the 1908 case did not apply to the situation raised by the Texas state law, which she said was written to evade judicial review and thwart the supremacy of federal law.

“I recognize that this seems like a novel case, and that’s because this is a novel law,” Ms. Prelogar said. “But we do not think that a recognition here that the United States can intervene to try to protect the supremacy of federal law would open the floodgates” in ordinary state court proceedings.

Dozens of protesters gathered in front of the Supreme Court during arguments on Monday, as the justices heard challenges to the Texas law that prohibits abortions after about six weeks of pregnancy.

Demonstrators from around the country gathered at the foot of the steps, most carrying signs supporting abortion rights and marking the sidewalks in chalk as the arguments, which were streamed live, played from speakers.

“It’s really sad to think about what women across my state are going through at the moment,” said Abby Springs, a senior at the University of Texas, Austin, who is studying in Washington for a semester. “As we speak, right now, women are having to drive hours and hours and hours across state lines just to be able to access an abortion.”

Valerie Reyes-Jimenez, a community organizer from New York City, said she arrived on a bus this morning with demonstrators from Housing Works, a nonprofit that supports efforts to end AIDS and homelessness. She said she thought the Texas law was especially harmful to women’s health because of the six-week timeline.

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Officers stand guard as abortion rights supporters participate in a protest at the Supreme Court.
Officers stand guard as abortion rights supporters participate in a protest at the Supreme Court.
Credit...
Tom Brenner for The New York Times

“I had an abortion when I was 13, and I have no regrets about it,” she said, adding that she had been about 10 weeks pregnant at the time. “I am a mother and a grandmother today, but I knew that was the right decision for me.”

Tens of anti-abortion demonstrators were also gathered before the Supreme Court, many dressed in red and carrying red heart-shaped balloons to show their support for the Texas law, which is known as the “heartbeat act” because it bans abortion after cardiac activity is detected. Many were organized to attend by the Texas attorney general’s office and declined to speak with reporters.

Christopher Palmer, 20, said he came to Washington from New Jersey with students from Rider University’s students for life organization to show that the Texas abortion law had support from young people.

“I think the Supreme Court should allow the State of Texas to make a decision,” adding that he and his organization wanted to see the court enable “ending abortion in America, starting with Texas and going state by state.”

Many of the abortion-rights demonstrators said they were planning to be back at the court on Dec. 1, when the court is scheduled to hear a case on Mississippi’s ban on abortions after 15 weeks of pregnancy.


Adam Liptak
Nov. 1, 2021

Justice Stephen Breyer and the ‘virtually irreconcilable’ abortion debate.

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Justice Stephen G. Breyer.
Credit...Erin Schaff/The New York Times

Justice Stephen G. Breyer, who is 83 and is the senior member of the court’s liberal wing, has written opinions striking down laws that restrict abortions in Nebraska, Texas and Louisiana. In the Nebraska opinion in 2000, Justice Breyer wrote that the debate over abortion involved “virtually irreconcilable points of view.”

“Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it,” he wrote. “Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”

In September, when the Supreme Court refused to block the Texas law, Justice Breyer dissented.

“Texas’ law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy,” he wrote. “But a woman has a federal constitutional right to obtain an abortion during that first stage.”

He acknowledged some of the procedural difficulties in the case, but he said the court had the power to act and should not hesitate to be creative. “It should prove possible to apply procedures adequate to that task here,” he wrote.

Adam Liptak
Nov. 1, 2021

Justice Sonia Sotomayor is a fierce critic of the Texas law.

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Justice Sonia Sotomayor said the Supreme Court’s refusal to block the law “inflicts significant harm on the applicants and on women seeking abortions in Texas.”
Credit...Al Drago for The New York Times

Four justices issued dissents when the Supreme Court refused to block the Texas law, but Justice Sonia Sotomayor’s opinion was by many measures the most striking.

“The court’s order is stunning,” she wrote. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

“Because the court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas,” she wrote, “I dissent.”

Almost two months later, the court again refused to take immediate action against the law and instead agreed to fast-track appeals from abortion providers in the state and the Justice Department, giving rise to Monday’s arguments. Justice Sotomayor was the only member of the court to issue a dissent from its refusal to block the law in the meantime.

“For the second time, the court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas,” she wrote. “For the second time, the court declines to act immediately to protect these women from grave and irreparable harm.”- END

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