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The U.S. Supreme Court in Washington, D.C., on May 28, 2020. (REUTERS/Graeme Sloan)

By Allyson Waller

The U.S. Supreme Court has agreed to fast-track two Texas cases involving the state's near-total ban on abortion, but refused to halt the law from being enforced.


The high court has scheduled oral arguments for Nov. 1.

The court will take up the cases brought forward by abortion providers and the U.S. Department of Justice against the ban, according to a court opinion from Justice Sonia Sotomayor on Friday. It will review the procedural merits of both cases, rather than the constitutionality of abortion, while enforcement of Senate Bill 8 remains in effect.

In her opinion, Sotomayor offered a partial dissent of the Supreme Court's decision to keep the law in place while the court deliberates over the two cases.

"By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8's architects intended," Sotomayor wrote.

The court's decision to expedite its involvement was a rare move, brought upon by a law that has garnered national attention because of its extensive limits on abortions and its particular mechanisms of enforcement: not by state officials but by private citizens who are empowered to sue those who may help someone receive an abortion after fetal cardiac activity is detected, before many people know they are pregnant.

"The last time [the Supreme Court] moved this quickly was Bush v. Gore," said Josh Blackman, a law professor at South Texas College of Law Houston whose expertise includes constitutional law.

The court opinion comes after Texas urged the Supreme Court on Thursday to allow SB 8 to stay in effect. U.S. attorneys had asked the Supreme Court to leapfrog the 5th U.S. Circuit Court of Appeals, which is currently overseeing the case, and step in. Texas Attorney General Ken Paxton wrote in Thursday's filing that the federal government lacks standing in the case.

The 5th U.S. Circuit Court of Appeals, one of the most conservative appellate courts in the country, froze an order from a federal district judge that temporarily blocked enforcement of SB 8 earlier this month. U.S. attorneys are now asking for the Supreme Court to undo the 5th Circuit's ruling and allow district court proceedings to continue.

Abortion providers had also asked the high court to fast-track a separate lawsuit. The Supreme Court's Friday decision to hear that case is unique because it hadn't been heard by a federal appellate court yet, Blackman said.

Normally, the Supreme Court considers getting involved in a case only after an appeals court has had a chance to make a decision on it. But abortion providers filed a request called a "certiorari before judgment," a rarely used procedure in which the high court immediately reviews a district court's ruling without waiting on an appellate court to take action.

One of the abortion providers included in the challenge is Whole Woman's Health, a provider with four clinics in Texas. Amy Hagstrom Miller, president and CEO of Whole Woman's Health, said Friday's decision will mean Texans will continue to be denied safe and accessible abortion care.

"The legal limbo is excruciating for both patients and our clinic staff," Miller said in a statement. "Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come."

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