The Supreme Court will be the scene of great drama in the days ahead as judges hear arguments about abortion and gun rights in what could be a defining week of a highly successful judicial period.
The pair of high-stakes oral arguments on divisive issues of intense public interest may give insight into the will of the 6-3 conservative court to reshape American life.
“No issue in our society is 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 in court the week of November 1 and will give us a clear idea of what it means to have a court with six conservative judges.”
On Monday, Texas’ controversial six-week abortion ban will get a second look from the judges. In a previous 5-4 ruling, which largely broke with family ideological lines, the justices let the law go into effect while the lower court challenges unfolded.
Since that Sept. 1 ruling, which did not address the measure’s constitutionality, litigation over the law, known as SB 8, has leaked to the Supreme Court.
The Department of Justice (DOJ) and abortion providers in Texas, who are challenging the case, argue that SB 8 violates broad protections for abortion access that the Supreme Court has recognized for nearly five decades, beginning with the decision. of 1973 in Roe v. Wade.
On Monday, the court will not directly address the legality of SB 8. Rather, judges will consider whether 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 “reward” system.
SB 8 grants law enforcement authority to private citizens by allowing them to file lawsuits for at least $ 10,000 if they successfully demonstrate that a defendant performed, aided, or instigated an abortion after federal heart activity was detected, usually around the hours of six weeks pregnant, which is before most. women know they are pregnant.
The 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 judges to find that challengers lack the legal right to bring a federal lawsuit against Texas, state officials or members of its judiciary in their attempt to overturn the six-week ban. Any legal challenge to SB 8, Texas argues, must be brought by a defendant in state court who has been sued for violating the six-week ban.
The Justice Department and abortion providers in Texas say excluding their claims in federal court would effectively nullify the long-recognized constitutional right to abortion before a fetus is viable, usually around 24 weeks of pregnancy. , and it would undermine the US Constitution’s recognition that federal law trumps state. law.
Arguments on the Texas restriction come exactly one 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 middle of a decades-long battle over one of the nation’s most contentious issues.
“This term presents a dizzying array of legal disputes that highlight the dangers and expectations of a system that relies heavily on judges to enforce individual rights,” said Robert Tsai, professor of constitutional law at Boston University. “In abortion rights cases, several citizens want judges to step in and protect a person’s right to choose against the moral preferences of their fellow citizens.”
On Wednesday, judges will hear arguments in one of the biggest Second Amendment cases in a decade. What is at stake is a New York gun control measure that challengers say infringes on their right to bear arms while away from home.
The New York law under review gives licensing officials discretion over the approval of concealed transportation permits. The lawsuit came after an official denied applications by two New York residents for unrestricted carrying licenses, saying the applicants had not shown “adequate cause” to carry firearms at all times.
The Biden administration has supported New York and urged the court to defer the long-standing practice of allowing legislatures to impose reasonable limits on firearms to protect public safety.
The case has attracted enormous outside interest. Firearms advocates, who say history is on their side, want judges to use the case as a vehicle to expand gun rights outside the home. Many Democratic-controlled states and cities, as well as gun control advocacy groups, warn that public safety would be in jeopardy if gun regulations are screwed up.
“This case could have an immediate and direct effect on the 80 million Americans who live in states with ‘just cause’ laws like New York,” said Joseph Blocher, a Duke University law professor and expert on the Second Amendment.
“If the court takes a purely historical approach to assessing 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.”