By ED WHELAN

September 23, 2021 5:12 PM

The abortion providers challenging the Texas Heartbeat Act currently have their case pending in the Fifth Circuit, with oral argument on jurisdictional issues scheduled (I’m told) for the week of December 8. But they have just filed in the Supreme Court an extraordinary petition for a writ of certiorari before judgment, asking the Court to jump past both the district court and the Fifth Circuit to decide the question “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

A couple of initial comments:

1. The abortion providers contend that “[o]nly [the Supreme] Court’s immediate intervention will ensure that Texans’ federal constitutional rights are protected.” But the Department of Justice, with much fanfare, has filed its own lawsuit against Texas over the Texas Heartbeat Act. The federal district judge in the DOJ case has scheduled a hearing on DOJ’s motion for a preliminary injunction for next Friday, October 1.

If my quick review is correct, the abortion providers make no mention of that lawsuit, other than to draw on various of the declarations that DOJ filed.

Do the abortion providers believe that DOJ’s lawsuit will surely fail? If so, why? If not, doesn’t that cut strongly against the extraordinary intervention that they seek from the Court?

2. When the Supreme Court denied the abortion providers’ previous application for emergency relief, the per curiam majority observed that their application “presents complex and novel antecedent procedural questions on which they have not carried their burden.” Nothing has changed on that score. So why should the Court grant certiorari? Why not benefit from the Fifth Circuit’s consideration of those antecedent questions?

Abortion Providers File Extraordinary Petition for Certiorari Before Judgment

By ED WHELAN

September 23, 2021 5:12 PM

The abortion providers challenging the Texas Heartbeat Act currently have their case pending in the Fifth Circuit, with oral argument on jurisdictional issues scheduled (I’m told) for the week of December 8. But they have just filed in the Supreme Court an extraordinary petition for a writ of certiorari before judgment, asking the Court to jump past both the district court and the Fifth Circuit to decide the question “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

A couple of initial comments:

1. The abortion providers contend that “[o]nly [the Supreme] Court’s immediate intervention will ensure that Texans’ federal constitutional rights are protected.” But the Department of Justice, with much fanfare, has filed its own lawsuit against Texas over the Texas Heartbeat Act. The federal district judge in the DOJ case has scheduled a hearing on DOJ’s motion for a preliminary injunction for next Friday, October 1.

If my quick review is correct, the abortion providers make no mention of that lawsuit, other than to draw on various of the declarations that DOJ filed.

Do the abortion providers believe that DOJ’s lawsuit will surely fail? If so, why? If not, doesn’t that cut strongly against the extraordinary intervention that they seek from the Court?

2. When the Supreme Court denied the abortion providers’ previous application for emergency relief, the per curiam majority observed that their application “presents complex and novel antecedent procedural questions on which they have not carried their burden.” Nothing has changed on that score. So why should the Court grant certiorari? Why not benefit from the Fifth Circuit’s consideration of those antecedent questions?