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What is today’s abortion hearing at the Supreme Court all about?

Supreme Court
Posted at 7:27 AM, Nov 01, 2021

WASHINGTON — The Supreme Court will hear oral arguments today in an abortion-related case out of Texas that could have implications for the entire country.

Monday’s case is the first of several consequential cases and opinions the Supreme Court is expected to release during this year’s term regarding abortion.

Texas takes center stage

The Texas law that the Supreme Court will consider Monday restricts abortion when a fetal heartbeat is detected, which usually happens six weeks into pregnancy.

The unique nature of the law is that regular members of the public — by way of civil litigation — are enforcers of the statute, not the government. That means if the law is allowed to stand, which so far it has, any citizen could sue an abortion provider for breaking the law.

The novel nature of the recently-passed legislation has perplexed many legal scholars.

“This case is being heard on an emergency basis,” said Paul Schiff Berman, a law professor at George Washington University.

Berman says Monday’s hearing is more procedural in nature, focusing on who is the actual defendant in the case. Texas officials are arguing that the Justice Department can’t challenge the state over the law because individual citizens will be doing the enforcing.

“It’s not clear who can be sued about this law. If you want to challenge this law, who are you bringing suit against?” Berman said. “That’s an entirely different question than whether Roe v. Wade gets overturned.”

Mississippi case up next

If justices rule strictly on whether legal challenges in the Texas case can go forward and do not address the legal precedent of abortion, it will mean that the next case to watch will be out of Mississippi.

Justices will hear oral arguments in that case on Dec. 1. That law restricts abortions after 15 weeks of pregnancy, with the government handling enforcement. For years, the Supreme Court has only allowed states to pass abortion restrictions after the moment of viability, which occurs around 24 weeks of pregnancy.

Whether the Supreme Court changes longstanding legal precedent remains up in the air. However, on paper, the current group of justices is the most conservative group in decades.