With Republican leaders steering the ship, Texas is pursuing several legal cases that could provide a steady diet of hot-button issues for the U.S. Supreme Court’s consideration.

From abortion to health care to immigration policy, the legal fights place added significance on the political fight to fill a sudden Supreme Court vacancy.

To borrow a phrase, what starts in Texas could change the world of law, particularly on a Supreme Court without Justice Ruth Bader Ginsburg, who died Friday, raising the prospect of shrinking the nine-member court’s liberal wing to three justices.

Currently, the most notable case out of Texas is Attorney General Ken Paxton’s 2½-year-old lawsuit to invalidate the Affordable Care Act, the health coverage law also known as Obamacare.

The Supreme Court is scheduled to hear oral arguments in that case on Nov. 10 — one week after Election Day and little more than 50 days after Ginsburg died of complications from pancreatic cancer.

If leading Republicans have their way, Ginsburg’s conservative successor will be serving a lifetime appointment by then, replacing a justice who joined the majority in two decisions that upheld key aspects of the Affordable Care Act in 2012 and 2015.

“Not having Justice Ginsburg greatly increases the possibility that there will not be enough justices to form a majority to get rid of this lawsuit,” said Joseph Fishkin, a University of Texas law professor.

But, Fishkin added, he would be surprised if five conservative justices will be swayed by a relatively strained argument, which seeks to invalidate the entire Affordable Care Act because Congress in 2017 removed a tax penalty for those who do not purchase health insurance.

“There’s some chance that the conservative justices will actually go for this argument even though it’s weak, and that chance is higher now, but I still think it’s not going to happen,” Fishkin said. “Even a lot of conservative opponents of the Affordable Care Act agree it’s … a strained argument.”

Still, it’s been a winning argument thus far for Paxton, whose lawsuit has been joined by the Trump administration and Republican leaders in 17 states.

First, U.S. District Judge Reed O’Connor of Fort Worth ruled in late 2018 that eliminating the tax penalty was a game changer. Because the Supreme Court had previously upheld the law as a valid exercise of congressional taxing power, ending the tax invalidated the entire act, the judge said.

With that ruling on hold during the appeal, late last year the 5th U.S. Circuit Court of Appeals upheld O’Connor’s ruling but returned the case to his court to determine if the tax mandate could be severed from the law, preserving the rest of the Affordable Care Act.

Before that could happen, California Attorney General Xavier Becerra, leading a coalition of 20 Democratic states seeking to preserve the law, turned to the Supreme Court, arguing that the 2010 act provides vital health coverage for more than 20 million Americans, protects 133 million with preexisting medical conditions and supports the national response to the COVID-19 outbreak.

Congress never intended to void the law when it ended the tax, instead rejecting numerous GOP-led attempts to repeal the Affordable Care Act over the past decade, Becerra said.

How the Supreme Court responds in handling President Barack Obama’s signature legislative achievement — particularly if a Trump nominee creates a 6-3 advantage for conservative justices — will be watched with interest.

“How far do they want to go, recognizing that their own legitimacy may be imperiled if they push too far in a direction most Americans disagree with about what the Constitution means?” Fishkin said.

2 Texas abortion laws

Other Texas cases are still an appeal or two away from arriving on the Supreme Court’s doorstep, but they include issues that frequently get high court review.

On the abortion front, two slow-moving cases will determine the fate of laws that were passed in 2017 but blocked by federal judges as impermissible restrictions on access to abortion.

The first law outlawed the most common method of second-trimester abortions — unless the abortion doctor first takes steps to ensure fetal demise.

In November 2017, U.S. District Judge Lee Yeakel of Austin blocked the law from taking effect, ruling that it required doctors to use risky, unproven and medically unnecessary methods to cause fetal demise before beginning a dilation and evacuation abortion, the safest procedure after the 15th week of pregnancy.

Paxton quickly turned to the 5th U.S. Circuit Court of Appeals, saying the law intended to protect “unborn human life from ghastly dismemberment abortions” should be upheld.

That case is still awaiting a ruling from the federal appeals court, as is a challenge to another abortion-related law from 2017, when the Legislature required fetal tissue from abortions or in-hospital miscarriages to be buried or cremated, with the ashes scattered in a respectful way.

Senior U.S. District Judge David Ezra of San Antonio issued a permanent injunction halting enforcement of the law, ruling that it put abortion clinics in danger of having to close for noncompliance because there were a limited number of businesses willing and able to meet the statute’s requirements.

Paxton appealed, arguing that the law “honors the dignity of the unborn and prevents fetal remains from being treated as medical waste.”

A decision on the two laws, delayed by a Supreme Court challenge in an unrelated abortion case that was resolved in June, could come soon.

What about Dreamers?

This summer, the Supreme Court blocked the Trump administration’s attempt to dismantle the Deferred Action for Childhood Arrivals, or DACA, program that offered deportation protection to immigrants brought illegally into the United States as children.

Chief Justice John Roberts, who wrote the opinion, was joined by Ginsburg and the court’s three other liberal justices in upholding the program.

That could be a temporary reprieve for the roughly 106,000 DACA participants, known as Dreamers, in Texas.

Disappointed by the ruling, Paxton vowed to press ahead with a separate lawsuit to overturn DACA.

That challenge is taking place in Brownsville federal court, where U.S. District Judge Andrew Hanen determined in August 2018 that Obama exceeded his authority when he created the DACA program.

Paxton has asked Hanen to follow through on that ruling by issuing an injunction barring the federal government from approving or renewing any more permits to young immigrants.

However Hanen rules, the losing side is sure to appeal to the 5th Circuit Court, one step below the Supreme Court.


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