Supreme Court Agrees to Quick Consideration of Texas Abortion Case

The case adds more urgency to a Supreme Court term that already was shaping up to be a momentous one for the future of abortion law. The justices in December will review an appeal by the state of Mississippi, which is seeking to implement an abortion ban after 15 weeks of pregnancy.

Both states are seeking to roll back precedents protecting abortion rights, starting with the 1973 Roe v. Wade decision. The high court for years declined to entertain such requests, but Republican-led states have been more willing to test the issue after recent changes in the court’s membership have made it more conservative.

“These are home-run swings by these states,” said University of Illinois law-school dean Vikram Amar. “There’s no way to uphold the Texas or Mississippi statutes absent dramatic changes in the existing doctrine and rules. And so, by the end of this term, we’re going to know whether this is an incremental conservative court or a transformational one.”

With Friday’s action, the justices stepped into the Texas battle even though lower courts haven’t issued final rulings on the law, known as the Texas Heartbeat Act, or SB 8, which bars abortions after about six weeks of pregnancy. The measure limits the procedure far earlier than allowed by current Supreme Court precedent, which says that women have a constitutional right to obtain an abortion before fetal viability. Doctors generally consider viability—when a fetus could live outside the womb—to fall around 21 to 24 weeks into a pregnancy.

Texas state Sen.

Bryan Hughes,

the Republican author of the abortion law, said: “I am encouraged that the law will remain in effect while the case is before the court, and I am optimistic that the court will uphold the right of Texans to protect life.”

The law’s critics voiced mixed views on Friday’s developments.

“It’s good in the sense that we may get an answer more quickly than we would have otherwise,” said Texas state Rep.

Donna Howard,

a Democrat who chairs the Texas Women’s Health Caucus. But it was disappointing, she added, that “Texas women are still being denied the rights and protections that every other U.S. woman has while this is going on.”

The high court said it would hear separate appeals by the Justice Department and abortion providers to decide legal issues related to Texas’s novel effort to shield its law from federal-court review.

The court’s latest order comes weeks after it voted 5-4 on Sept. 1 to let the Texas law go into effect. The justices’ prior order came when it denied an emergency appeal by the abortion providers, with the court’s majority saying there were procedural problems with how they sued to challenge the law.

The Justice Department stepped in days later with its own lawsuit against Texas and argued its claims didn’t face the same hurdles that prevented the high court from intervening in the providers’ case.

Earlier this month, a federal judge in Austin sided with the department and granted a preliminary injunction blocking the law, but the Fifth Circuit Court of Appeals last week put that ruling on hold, allowing the state restrictions to remain in force for now.

Under SB 8, physicians can’t perform an abortion if they know there is “a detectable fetal heartbeat,” which the law defines as including cardiac activity in the embryo in the early weeks of pregnancy. The law doesn’t contain exceptions for rape or incest.

Texas wrote its law in a manner designed to make it difficult to challenge in court, by preventing state officials from having any direct role in enforcing the law. Instead, SB 8 empowers private parties to file civil lawsuits alleging violations. A plaintiff who wins in court can collect at least $10,000 from someone found to have performed—or aided—a banned abortion.

During the weeks since the law took effect, abortions have been difficult to obtain in Texas, with some women traveling to abortion clinics in neighboring states.

The Justice Department, in papers filed with the Supreme Court, said Texas was openly defying federal constitutional law and had “successfully nullified this court’s decisions within its borders.”

If the state’s tactics succeed, there is nothing to stop other states from writing laws that deny other constitutional rights the Supreme Court has previously protected, such as the right to own a handgun in the home, the department said.

Texas in response said it was under no obligation to make its law easy to challenge and argued the Justice Department’s lawsuit was improper.

“The federal government cannot get an abortion, and the Constitution does not assign it any special role to protect any putative right to abortion,” the state wrote in a court brief.

The Supreme Court on Friday said it would decide whether the federal government can sue Texas in federal court and obtain a ruling “against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit SB 8 from being enforced.”

In the providers’ case, the court will be considering whether Texas can insulate its law from federal-court review by delegating enforcement authority to the general public.

Under the Supreme Court’s normal timelines, rulings would be expected by the end of next June, though the decisions could come earlier since the justices are treating the cases in expedited fashion.

Justice

Sonia Sotomayor,

writing separately on Friday, criticized the court for not blocking the law immediately while it considers the cases.

“The promise of future adjudication offers cold comfort…for Texas women seeking abortion care, who are entitled to relief now,” Justice Sotomayor wrote. “These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether.”

Despite the fast-moving Texas proceedings, the Mississippi case, set for arguments Dec. 1, still may be the one in which the Supreme Court addresses abortion-rights issues more broadly.

Mississippi argues that nothing in the text, structure or history of the Constitution supports a right to an abortion. States, it says, have legitimate interests in preventing abortions well before fetal viability, which the 1973 court defined as the capability of meaningful life outside the mother’s womb.

Abortion-rights advocates say the state is pushing for radical changes in the law that would upend 50 years of practice and take away a woman’s liberty in deciding whether to continue with a pregnancy.

—Elizabeth Findell contributed to this article.

Write to Brent Kendall at brent.kendall@wsj.com