The Texas Heartbeat Abortion Law May Be Back at the Supreme Court

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Posted: Sep 29, 2021 9:30 PM
The Texas Heartbeat Abortion Law May Be Back at the Supreme Court

Source: AP Photo/Steve Helber

It's been a very busy month for the Texas Heartbeat Act, which the U.S. Supreme Court allowed to go into effect earlier this month. The law bans most abortions once a fetal heartbeat has been detected, at around six weeks. The Supreme Court's decision-making was based on a procedural matter rather than the merits. There have been other legal proceedings, and sure enough, the law may find its way right back to the Supreme Court sooner rather than later, as Kyle Morris reported for Fox News on Wednesday. 

This law has come under particular scrutiny from the pro-abortion movement, as it bans so many abortions. Other pro-life states may also follow suit and pass their own such "heartbeat" laws, or and in addition to similar pro-life laws. 

Abortion providers have requested oral arguments in December. Meanwhile, the Court just recently announced that it will hear oral arguments on December 1 for Dobbs v. Jackson Women's Health Organization, to decide the constitutionality of The Gestational Act out of Mississippi, which bans most abortions after 15 weeks gestation. Specifically, the case will examine the constitutionality of pre-viability abortion bans.

Viability is considered to be at around 24 weeks, a time frame that is earlier and is much more understood than when Roe v. Wade was decided in 1973. Some premature babies born at 22 weeks have survived though. 

By 20 weeks gestation, an unborn child in the womb is considered to be able to feel pain, though recent studies, say it may be even earlier

As Morris writes when it comes to further details about the proceedings:

The Supreme Court has given the defendants in the case until Oct. 28 to provide a written brief with their views. The justices will then meet in a closed-door conference and determine whether or not to accept the petition for full review and include it on their docket, and whether it should be fast-tracked. The justices will also determine at that time whether or not oral arguments will be heard regarding the case in December, as requested by the abortion providers.

Also on Wednesday, Ann E. Marimow and Robert Barnes reported for The Washington Post that Texas Attorney General Ken Paxton defended the law when it was challenged from the Biden administration's Department of Justice before a federal judge:

Texas Attorney General Ken Paxton (R) said the court should dismiss the Biden administration’s lawsuit seeking to block the measure that has effectively halted most abortions in the nation’s second-most-populous state.

The Justice Department, the state said in its court filing, does not have the authority to use the federal courts to enforce a constitutional right to abortion. Rather, the Texas law must be challenged in state court through lawsuits brought by private citizens, Paxton contends. 

“If the Department of Justice wants to expand its authority, it should direct its requests to Congress, not this Court,” the filing states. “At bottom, the federal government’s complaint” is that the law is difficult to block in federal court. “But there is no requirement that a state write its laws to make them easily enjoined.” 

The court filing comes in advance of a hearing scheduled for Friday before U.S. District Judge Robert Pitman in Austin. It landed just as the Senate Judiciary Committee was examining the impact of the Texas law that allows individuals to take legal action against anyone who helps a woman terminate her pregnancy and the Supreme Court’s refusal to block the law’s enforcement immediately.

As Marimow and Barnes referenced, the U.S. Senate Judiciary Committee was troubled enough by the unsigned opinion coming from what is known as the shadow docket that they held a hearing on Wednesday, on abortion and on shadow docket decisions.

An estimated 2,700 unborn lives may have been saved from abortion since the law went into effect.

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