On Nov. 1, the U.S. Supreme Court heard two cases that impact abortion access. These cases were to challenge Texas’ six week abortion ban, a set of laws that directly impact the ability of pregnant individuals to make a choice over their reproductive health. This is because six weeks is often too early for most individuals to recognize they are pregnant.
The Texas law, SB.8, allows for private citizens to bring lawsuits against anyone they believe received abortion care or provided the care after the six week mark. This essentially circumvents the standard judicial system by allowing private citizens to bring suits against other private citizens. This detail is critical as it allows the state to essentially bypass judicial review.
The first in these two cases is Whole Woman’s Health v. Jackson, a case brought to the courts by Texas clinics, providers and abortion funds. The state of Texas asked the Court to block the providers’ lawsuit. The court must decide whether or not Texas can use this enforcement mechanism to insulate itself from judicial review when it passes unconstitutional laws. If the Supreme Court sides with the providers, the abortion ban will not be lifted. All that will happen instead is that the case will continue to move through the lower courts..
However, if the court sides with the state of Texas, many fear that this would create a slippery slope for other dangerous laws. If states were to granted the constitutional authority to pass laws that circumvent judicial review then other states be allowed to pass similar abortion bans. Most dauntingly, states could essentially grant private citizens the authority to enforce any law they deemed important enough to bypass judicial review.
In the second case, United States v. Texas, the U.S. Solicitor General has asked the Supreme Court to block enforcement of Texas SB.8. The U.S. Solicitor General is not seeking merely to sue states for unconstitutional laws, but also to prevent states from enacting enforcement schemes that circumvent judicial review. However, the Supreme Court justices seemed more reluctant to allow this case to move forward and more inclined to want to see the outcome of the lower courts in the case of Whole Woman’s Health v. Jackson, the case heard just before United States v. Texas.
While we will not hear the opinions of these cases for several weeks or months, it is important to stay up to date with the proceedings of these cases and related cases. On Dec. 1, the Supreme Court will hear Dobbs v. Jackson Women’s Health Organization, a direct challenge to Roe v. Wade and Planned Parenthood v. Casey. These are the two cases that currently give the constitutionally protected right to privacy and therefore the right to abortion. It is feared that this case could further undermine abortion rights or open new opportunities for states to try similar or more devious approaches.
It is now more important than ever to ensure that the constitutional right to privacy and abortion are protected. Without these, it is possible to see the right to abortion care and other critical services required to end the HIV epidemic stripped.