Judicial

Supreme Court to hear oral argument November 1 in Texas Heartbeat Law. AG’s official brilliant defends SB 8.

Editor’s note. The Supreme Court this morning agreed to hear a challenge to the Texas Heartbeat Law and scheduled oral arguments for Nov.1. That is one month before arguments in Dobbs v. Jackson Women’s Health, the Mississippi law which bans abortions after the 15th week. However, over the bitter dissent of Justice Sotomayor, the Court did not vacate the 5th Circuit stay of District Court Robert Pitman’s preliminary injunction.

In responding to the Justice Department request that the Supreme Court take emergency action to block Texas’ Heartbeat Law, Texas Attorney General Ken Paxton told the justices that the request is procedurally flawed but, if it does intend to go ahead, “the Court should overturn Roe and Casey.”

Paxton argued, “The Court erred in recognizing the right to abortion in Roe and in continuing to preserve it in Casey.”

However “Officials , led by state Attorney General Ken Paxton expressed confidence the state’s ban could be upheld on the merits because of its unique enforcement scheme that relies on suits filed by private parties, rather than state or local prosecutors,” according to Politico’s Alice Miranda Ollstein.

Last month, abortion supporters asked the Supreme Court to take the highly unusual step of leap-frogging the 5th U. S. Circuit Court of Appeals before it delivers final judgment on S.B. 8 “because of the urgency of the harm” caused by the law.

“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,” Ollstein wrote.

The 5th U.S. Circuit Court of Appeals allowed the Heartbeat Law to go back into effect after Judge Robert L. Pitman of the Federal District Court in Austin ruled for the federal government on October 6. In granting a preliminary injunction forbidding the state, its officials, and private individuals acting in concert with them from enforcing the law, Judge Pitman wrote “That other courts may find a way to avoid this conclusion is theirs to decide. This court will not sanction one more day of this offensive deprivation of such an important right.”

Texas staunchly defended the panel’s decision:

Here, multiple grounds exist for showing that Texas was likely to succeed on the merits of its appeal because the federal government has not even established jurisdiction; its newly discovered, and highly specific, equitable cause of action does not exist; and SB 8 does not violate the Constitution. And the district court’s decision to enjoin Texas, Texas’s entire judiciary, and all of its citizens constitutes an irreparable injury that is against the public interest. …In sum, far from being demonstrably wrong, the Fifth Circuit’s conclusion that Texas is likely to prevail was entirely right.

Meanwhile, abortion providers in Texas are challenging S.B.8 in a separate suit. They filed “a new request last month, asking the justices to hear their challenge quickly, bypassing the appeals court, using a procedure called ‘certiorari before judgment,’” the New York Times Adam Liptak reported.

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