Pro-choice activists hold a banner outside the U.S. Supreme Court in Washington, D.C., U.S., on Monday, Oct. 4, 2021.
Stefani Reynolds | Bloomberg | Getty Images
Texas officials said in response that the justices should deny that request, arguing that the appeals court is due to hear arguments in the case soon.
In an order Friday afternoon, the Supreme Court granted the advocates’ request, scheduling oral arguments in the case known as Whole Woman’s Health v. Jackson for Nov. 1.
That is one month before the Supreme Court is set to hear arguments in another pivotal abortion case, Dobbs v. Jackson Women’s Health, which directly challenges the abortion-rights precedent established in 1973 under Roe v. Wade.
Justice Samuel Alito, who is assigned to handle requests from Texas, on Friday also granted a petition from the Department of Justice to have the court hear its challenge of S.B. 8 this term. But the question before the court in that case is limited to whether the federal government has the power to stop state officials or private parties from enforcing Texas’ law.
For both cases, the court set identical schedules for parties to file briefs and hold oral arguments.
In a dissent, Justice Sonia Sotomayor lamented that the court had once again declined “to act immediately to protect these women from grave and irreparable harm.”
Sotomayor recounted a district court’s findings that S.B. 8 had prohibited as many as 95% of abortions previously provided in Texas, while straining resources in neighboring states and harming would-be patients.
“These ruinous effects were foreseeable and intentional,” Sotomayor said of the “catastrophic” impact of the law.
“Every day that S.B. 8 remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights,” she wrote.
S.B. 8 took effect in September after the Supreme Court declined an emergency request to block it. The law bans most abortions once a fetal heartbeat can be detected, which occurs as early as the sixth week of gestation.
That cutoff — when many women do not yet know they are pregnant — is significantly narrower than the window of time to get an abortion allowed under Roe.
Rather than task state officials with enforcing the ban, S.B. 8 delegates that power to private citizens, who are allowed to sue, for at least $10,000, anyone who “aids or abets” an abortion.
The Justice Department and other critics, including Sotomayor, say the law establishes a private “bounty hunter” system that is designed to prevent courts from intervening.
Texas officials in previous court filings told the justices that if they decide to hear challenges to S.B. 8, they should use the opportunity to overturn Roe and another case, 1992’s Planned Parenthood v. Casey, that affirms abortion rights before fetal viability.
Earlier Friday, the DOJ responded that “if the Court entertains those requests at all, it should reject them … because Roe and Casey were and remain correct.”
That reply also argued that the justices should temporarily stop S.B. 8 from being enforced, accusing Texas of “systematically denying women a constitutional right.”
“If Texas is right, no decision of this Court is safe,” acting Solicitor General Brian Fletcher argued Friday in the DOJ’s brief to the court.
If allowed to stand, Fletcher argued, Texas’ legislative strategy would mean that “states need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever rights they disfavor; disclaim state enforcement; and delegate to the general public the authority to bring harassing actions threatening ruinous liability.”
