The Supreme Court will be the scene of high drama in the coming days when the justices hear arguments over abortion and gun rights in what could be a defining week of a blockbuster court term.
The pair of high-stakes oral arguments on divisive matters of intense public interest may provide a glimpse into the 6-3 conservative court’s willingness to reshape American life.
“No issues in our society are more controversial or more reflective of our political divide than abortion and guns,” said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law. “Both are before the court the week of Nov. 1 and will give us a clear sense of what it means to have a court with six conservative justices.”
On Monday, Texas’s controversial six-week abortion ban will get a second look from the justices. In a previous 5-4 ruling, which largely broke along familiar ideological lines, the justices let the law go into effect while lower court challenges played out.
Since that Sept. 1 ruling — which did not address the measure’s constitutionality — litigation over the law, known as S.B. 8, has percolated back up to the Supreme Court.
The Department of Justice (DOJ) and Texas abortion providers — the challengers in the case — argue that S.B. 8 violates broad protections for abortion access that the Supreme Court has recognized for nearly five decades, starting with the 1973 decision in Roe v. Wade.
The court on Monday will not directly address the legality of S.B. 8. Rather, the justices will consider whether the challengers can have their claims heard in federal court. That question is complicated by the law’s unique legislative design, which critics liken to a “bounty” system.
S.B. 8 gives enforcement authority to private citizens by allowing them to file lawsuits that fetch at least $10,000 if they successfully show a defendant performed, aided or abetted an abortion after fetal cardiac activity was detected, typically around six weeks of pregnancy — which is before most women know they are pregnant.
The law's enforcement mechanism has given rise to “complex and novel” procedural questions, the 5-4 majority court said in its Sept. 1 ruling, which denied abortion providers' emergency request to block the law.
Texas on Monday will urge the justices to find that the challengers lack the legal right to bring a federal suit against Texas, state officials or members of its judiciary in their bid to invalidate the six-week ban. Any legal challenge to S.B. 8, Texas argues, should be raised by a defendant in state court who has been sued for violating the six-week ban.
The DOJ and the Texas abortion providers say that barring their claims from federal court would effectively nullify the long-recognized constitutional right to an abortion before a fetus is viable, typically around 24 weeks of pregnancy, and undermine the U.S. Constitution's recognition that federal law trumps state law.
Arguments over the Texas restriction comes exactly a month before the court hears arguments in a separate case involving Mississippi’s 15-week abortion ban, which poses a direct challenge to Roe v. Wade.
The clashes will thrust the court into the center of a decades-long battle over one of the nation’s most contentious issues.
“This term features a dizzying array of legal disputes that highlight the perils and expectations of a system so heavily dependent on judges to enforce individual rights,” said Robert Tsai, a constitutional law professor at Boston University. “In the abortion rights cases, a number of citizens want judges to step in and protect a person's right to choose against the moral preferences of fellow citizens.”
On Wednesday, the justices will hear arguments in one of the biggest Second Amendment cases in a decade. At issue is a New York gun control measure that challengers say infringes on their right to bear arms outside the home.
The New York law under review gives discretion to licensing officials over whether to approve concealed carry permits. The lawsuit arose after an official denied two New York residents’ requests for unrestricted carry licenses, saying the applicants had not demonstrated a “proper cause” to carry handguns at all times.
The Biden administration has thrown its weight behind New York and urged the court to defer to the longstanding practice of allowing legislatures to place reasonable limits on firearms to protect public safety.
The case has drawn enormous outside interest. Firearms advocates, who say history is on their side, want the justices to use the case as a vehicle to expand gun rights outside the home. Many Democratic-run states and cities, as well as gun control advocacy groups, warn that public safety would be imperiled if gun regulations are scuttled.
“This case could have an immediate and direct effect on the 80 million or so Americans who live in states with ‘proper cause’ laws like New York’s,” said Joseph Blocher, a law professor at Duke University and expert on the Second Amendment.
“If the court adopts a purely historical approach to evaluating the constitutionality of gun laws, it would completely alter the state of Second Amendment jurisprudence going forward,” Blocher added. “The downstream effects on other forms of gun regulation are really hard to predict, but they could be hugely significant.”