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Why the Texas GOP's abortion ban is back at the Supreme Court

Texas would have justices believe that since the state isn't directly responsible for enforcing the law, Texas can't be sued for having created the law.

Exactly two months ago today, five Republican-appointed U.S. Supreme Court justices gave the green light to Texas' new abortion ban, effectively halting Roe v. Wade protections in the nation's second largest state. But as we've discussed, even at the time, it was clear that the ruling would not be the final word on the subject, and the conservative justices had not issued an opinion on the merits of the case.

Two months later, as NBC News reported, the case is back.

The Supreme Court on Monday is taking up two challenges to the nation's most restrictive abortion law: the Texas measure that has all but stopped abortions in the state. The court's decision to consider the issue on an unusually accelerated schedule ramps up the drama over abortion, as the justices prepare to hear an even more consequential case a month from now. On Dec. 1, Mississippi will urge the court to overrule Roe v. Wade and declare that there is no constitutional right to abortion.

The oral arguments, which began this morning, actually involve two challenges to the structure of Texas' abortion ban, known as S.B. 8, which was its state legislative bill number.

One legal challenge was brought by a clinic in Texas called Whole Women's Health, while the other was brought by the Biden administration's Justice Department. The justices heard oral arguments in both cases back-to-back.

At first blush, it might be tempting to think these related cases will lead to a Supreme Court ruling on reproductive rights, since the underlying issue involves a state abortion ban. But in this instance, that's not quite right. To understand the question before the justices, let's revisit what makes Texas' law so unusual.

Unlike the usual abortion bans approved by GOP policymakers, Texas Republicans tried to shield their ban by shifting enforcement of the law from the state to ordinary citizens. The result is effectively a vigilante system: If some random person learns that a Texan had an abortion after six weeks of pregnancy — before many women even know they are pregnant — he could file suit against the physician who performed the procedure. And the nurse who was in the room. And the friend who drove the woman to the health clinic. And the family member who gave the woman some money to help pay for the trip.

According to the state's new law, a random person, effectively deputized by Texas Republicans, could sue any of these people for $10,000 — plus attorneys' fees — turning anti-abortion activists into bounty hunters.

The goal was to create a legal barrier of sorts: Texas would have the courts believe that since the state isn't directly responsible for enforcing the law, Texas can't be sued for having created the law, even if it's plainly at odds with existing precedent. In fact, some have suggested that the law can't be challenged at all, since it only empowers private citizens and not the state.

And that is the question before the high court today. As NBC News' report added, "The justices must decide whether abortion providers in Texas and the Justice Department have the legal right to challenge the law in court and to seek orders banning state court clerks and judges from doing anything in response to the lawsuits."

A decision is not expected until the spring. Texas' abortion ban will remain in effect in the interim.