Abortion rights organizations face a difficult job persuading the U.S. Supreme Court to expedite review of Texas' six-week abortion law, history shows.

Whole Woman's Health and a coalition of abortion providers and organizations on Thursday filed a petition for certiorari before judgment in which they urged the justices to consider the legal and constitutional issues surrounding the state abortion law before those issues are ruled on by the U.S. Court of Appeals for the Fifth Circuit.

The justices have jurisdiction to accept a petition for review before judgment once a case has been docketed in the court of appeals. But the justices' rules state that those petitions will be granted "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."

The abortion rights coalition in the Texas case argues that "Texans are in crisis" as a result of the abortion ban and its provisions ceding enforcement only to private citizens who, if they prove violations by a provider or anyone who assists someone in obtaining an abortion, may collect $10,000.

"Faced with the threat of unlimited lawsuits from the general populace and the prospect of ruinous liability if they violate the ban, abortion providers have been forced to comply," wrote Marc Hearron of the Center for Reproductive Rights and counsel of record to the coalition.

When the justices have granted review before judgment, it generally has been to cases that fall into one of three rather loose categories, according to scholars and litigators who have followed that area of the court's workings. The three categories are:

• Taking a case to combine with one already granted review, as in the 2003 affirmative action cases, Gratz v. Bollinger and Grutter v. Bollinger.

• When review is sought by the federal government, often in situations involving presidential power, or national emergencies or crises, as in the Nixon tapes case, United States v. Nixon, and the seizure of steel companies during the Korean War in Youngstown Sheet & Tube v. Sawyer.

• Cases involving international relations and foreign policy decisions, for example, McCulloch v. Sociedad Nacional, where the court considered application of U.S. labor laws to foreign ships in U.S. waters.

The Trump administration was the most aggressive user of petitions for cert before judgment in modern times. The administration's solicitor general, Noel Francisco, made the request 10 times in cases, including, for example, restrictions on transgender members of the military, the decision to wind down the Deferred Action on Childhood Arrivals, and the effort to place a citizenship question on the 2020 census. The latter case was the first time the court granted this type of petition since 2004, according to records kept by Stephen Vladeck of the University of Texas School of Law.

By comparison, Vladeck has reported that the solicitor general in President George W. Bush's administration sought cert before judgment once during Bush's eight years in office, and the Obama administration's solicitor general sought it only in a trio of cases involving the Defense of Marriage Act between 2009 and 2017.

"It's very rare, and this case [the Texas abortion ban] is certainly a hot-button issue that some members of the court might be very interested in dealing with the underlying issues, and others not so much," Brian Wolfman of Georgetown University Law Center said.

Others noted the Texas petition is not the traditional candidate for cert before judgment. And, the fact that five of the court's conservative members voted on Sept. 1 to reject the coalition's emergency request to temporarily block the law, they may be reluctant now to put it on a fast track.

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