A protester waves an abortion flag in front of the United States Supreme Court as judges hear a major abortion case over the legality of a Louisiana law supported by Republicans that places restrictions on physicians performing the abortion, at Capitol Hill in Washington, United States, March 4, 2020.
Tom Brenner | Reuters
Abortion and guns take center stage as the Supreme Court returns to the bench in November to hear oral arguments in some of the most high-profile cases of the period.
On Monday, judges will hear back-to-back arguments in two cases, Whole Woman’s Health v. Jackson and United States v. Texas, challenging a restrictive Texas law that bans most abortions after about six weeks of pregnancy.
Two days later, the court will hear arguments in New York State Rifle & Pistol Association v. Bruen, a case that focuses on Second Amendment protections for the right to bear arms in public.
The cases, which deal with two of the thorniest and most polarizing topics in U.S. politics, will be dealt with by a court that had already fueled furious backlashes and accusations of politicization even before its last term in office. Experts say the court’s conservative turn during the Trump administration may be part of the reason some of these cases get heard in the first place.
Here’s what you need to know:
The court will consider questions on the structure of Texas law, SB 8, on Monday, rather than attacking legal precedent for abortion – most notably Roe v. Wade and Planned Parenthood v. Casey – whom the state is accused of raping.
U.S. Capitol Police in riot gear stand between women’s rights activists and an anti-abortion activist, as they rally outside the Supreme Court after a rally in Freedom Square for the Annual Women’s March on October 2, 2021 in Washington, DC.
Tasos Katopodis | Getty Images
SB 8 was signed by Republican Governor Greg Abbott in May and came into effect in September. It bans almost all abortions in Texas by banning the procedure after a fetal heartbeat is detected, which occurs as early as week six of pregnancy.
Rather than tasking state officials with enforcing the six-week ban, SB 8 delegates this power to private citizens, who are empowered to sue, for at least $ 10,000, anyone who “assists or encourages “an abortion.
Critics call this enforcement mechanism a loophole, intended to avoid accountability and judicial review. The Supreme Court is hearing oral arguments against the law from the Department of Justice and a group of abortion providers, both of whom have filed lawsuits against Texas officials.
Texas argued that since abortion law is not enforced by the state, they should not be defending it in court. “No official of the state executive really enforces [the law]Texas wrote in a 93-page High Court brief Wednesday, “making the injunction an inappropriate attempt to outlaw a law rather than a person.”
The Justice Department wrote in its own judicial brief that “other states already see SB 8 as a model” and that “if Texas is right, no decision of this court is certain.”
Judges on December 1 are expected to hear arguments in another case, Dobbs v. Jackson Women’s Health Organization, directly targeting decisions that upheld the right to abortion for decades.
Forensic observers who will follow Monday via live audio – new to the coronavirus pandemic – will listen carefully for clues as to how some judges, including Chief Justice John Roberts, will approach Roe and Casey in this case and from others in the near future.
“I think everyone will be watching the Chief Justice very closely,” said Jaime Santos, partner at the Supreme Court and appeals litigation practice at the law firm Goodwin.
“Among conservative judges, he is the most inclined to protect the principles of stare decisis” – respect for precedent in similar cases – “and the most concerned about the public perception of the Court as a fair and independent body “Santos said.
Oral arguments on the Texas law come less than two weeks after the court approved the two cases on a greatly accelerated schedule. The rocket procedure could also cause judges to render decisions much faster than if cases were proceeding at normal speed, Thomas Cooke, professor of business law at Georgetown University, told CNBC.
Pro-choice activists march past the United States Supreme Court in Washington, DC, United States, Monday, October 4, 2021.
Stefani Reynolds | Bloomberg | Getty Images
In late August, abortion rights advocates and service providers in Texas asked the Supreme Court to temporarily block SB 8 before it goes into effect on September 1 at midnight. But the court did not respond until a few hours after the law came into force.
In a late-night ruling, a simple majority of five judges – including the three appointed by former President Donald Trump – voted to dismiss the lawyers’ emergency request, largely on procedural grounds. Roberts sided with the three liberals in the court, writing in dissent that “the statutory regime in court is not only unusual, but unprecedented.”
Following the 5-4 decision, according to abortion providers, hundreds of patients in Texas have been denied care, while clinics in neighboring states have been overwhelmed.
Critics, including President Joe Biden, got angry. The Supreme Court’s approval rating has fallen to a new low, and calls for High Court reform – already a topic of study in the Biden administration – have grown even stronger.
Quickly, several judges, including Samuel Alito, Clarence Thomas and Amy Coney Barrett, spoke out in defense of the court. “This tribunal is not made up of a bunch of partisan hackers,” Barrett reportedly said in September.
That same month, abortion providers whose requests had been denied filed another petition with the High Court. This time, they asked the judges to take their case quickly by challenging the law, even though the dispute in the 5th Circuit Court of Appeals was still pending.
Separately, the DOJ sued Texas in federal court, winning an injunction that was later stayed by an appeals court. The agency then approached the Supreme Court, asking it to block Texas law by overturning the lower court’s decision to reinstate the abortion ban.
At the end of October, the Supreme Court agreed to hear the two cases on the accelerated schedule.
Two other cases originally scheduled for November 1, Ramirez v. Collier and Shinn v. Ramirez, were postponed until later in the warrant.
Wednesday’s arguments focus on a century-old New York law, which requires some candidates to demonstrate “good cause” to obtain licenses to carry a handgun concealed in public.
Tom King, head of the New York State Rifle and Pistol Association (NYSRPA), and challenger in a United States Supreme Court case regarding the right to carry handguns in public, poses at the NYSRPA office in East Greenbush, New York, United States, October 20, 2021.
Cindy Schultz | Reuters
The Supreme Court case stems from a 2018 lawsuit filed by the New York State Rifle & Pistol Association and Robert Nash and Brandon Koch.
Nash and Koch are New York residents whose requests to carry guns in public for reasons of self-defense have been denied. The licensing officer who rejected their requests said they “had not demonstrated a particular need for self-defense that distinguished [them] of the general public. “
The request for the Supreme Court to reconsider the case argues that a lower court ruling upholding New York law was “untenable.”
In a submission in July, the petitioners argued that the wording of the Second Amendment – guaranteeing âthe right of the people to keep and bear armsâ – refers to two distinct rights. “To keep” weapons is to be able to possess them, while “to carry” weapons is to be able to carry them, they argued.
New York Attorney General Letitia James argued in February that the Supreme Court should not hear the case.
“The law is consistent with the historic scope of the Second Amendment and directly advances New York’s compelling public safety and crime prevention interests,” wrote James.
The most recent major Supreme Court rulings on firearms came more than a decade earlier in District of Columbia v. Heller, when the court ruled that the Second Amendment protected the individual’s right to carry a firearm for self-defense inside the home.
Last year, the court declined to make a substantive ruling in another New York gun regulation case, which has some of the strictest rules in the country. Judge Brett Kavanaugh, the second person appointed by Trump, urged his colleagues to hear another Second Amendment case “soon”.