By Melissa Murray
As the clock crept toward midnight on Tuesday, August 31, court-watchers were anxiously awaiting a ruling from the Supreme Court in a challenge to SB 8, a Texas law that prohibits abortion at just 6 weeks of pregnancy. The law is the latest in a litany of ever-more restrictive abortion laws that have been passed in recent years, an uptick that likely reflects the increasingly conservative character of the Supreme Court and the lower federal courts. With former President Trump’s appointments of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court and a steady stream of conservative judges appointed to the lower federal courts, states like Alabama, Mississippi, and Texas have doubled down on their efforts to legislate abortion rights out of existence, enacting so-called heartbeat laws that prohibit abortion at 15 weeks, 12 weeks, and now, six weeks of pregnancy.
These laws obviously violate the Supreme Court existing precedents, all of which make clear that states may not ban abortion before the point of viability—typically marked at 23 or 24 weeks of pregnancy. Accordingly, when these laws are passed, they are immediately challenged with abortion providers suing the state officials charged with enforcing the law. And typically, when these suits are brought, lower federal courts issue a preliminary injunction, preventing state officials from enforcing the law while the legal challenge is pending. For example, in Roe v. Wade, Roe referred to the plaintiff, Jane Roe, and Wade referred to Henry Wade, the Dallas County District Attorney charged with prosecuting violations of the challenged criminal law.