In response to the pro-life Texas Heartbeat Act, abortion clinics in the state have petitioned the U.S. Supreme Court to bypass the normal appeal process to take up their challenge of the law immediately. The new Texas law makes most abortions illegal after a fetal heartbeat is medically detected, usually around the sixth week of pregnancy. On September 1, the law entered into effect.
The abortion providers are attempting a rarely used process to skip past lower federal district and appeals courts and take up the case’s final resolution as soon as possible. The providers argue that fast-tracking is necessary because other states are likely to follow the lead of Texas in enacting similar laws.
Their petition states that women in Texas are “unable to exercise their federal constitutional right to obtain an abortion,” and many are “being forced” to travel to other states to have an abortion procedure.
The enactment of the Texas law has sparked legislative action nationwide, with Republicans in at least six states now considering similar bills in their legislatures. The House of Representatives is considering a vote on a bill that would enshrine the holding of Roe v. Wade in federal statutory law. Even though there is very little chance that such a bill could pass in the Senate, the debate over the bill would be an opportunity for Democrats to stir up fundraising and interest in blue states.
The procedure used by the abortion providers before the Supreme Court is rarely seen and is generally disfavored in the judicial process. Lower courts have a significant propensity to consider federal cases before they reach the Supreme Court thoroughly. The court rules allow the process only when a case is of “such imperative public interest” that the standard procedure should be set aside.
The petition faces an uphill climb, especially since the court is already planning on hearing a case in the upcoming term related to abortion and whether Roe v. Wade should be overturned. That case, Dobbs v. Jackson Women’s Health Organization, is set for oral arguments before the court on December 1. A final decision and written opinions from the justices are expected in May or June of next year.
The court has also already issued an order related to the Texas Heartbeat Act on September 1. In an unsigned order, the court voted 5-4 to allow the law to take effect as scheduled.