During over 3 hours of oral arguments on Monday, a seeming majority of Supreme Court justices appeared receptive to blocking a Texas law that essentially bans abortion after 6 weeks.
They seemed less certain about whether the federal government — which is also challenging the law — was within its rights to sue Texas.
Senate Bill 8, which went into effect September 1, allows any private citizen to file suit anywhere in the state against anyone who performs, induces, or “aids or abets” an abortion. If successful in court, the plaintiff is entitled to at least $10,000 and does not have to pay attorneys’ fees; rather, defendants are required to pay all legal costs.
In September, most justices denied an emergency request to stop the law but agreed to quickly hear the challenges in person.
At Monday’s hearing, it appeared that a few Justices who had let the law stand — notably conservatives Amy Coney Barrett and Brett Kavanaugh — were now agreeing that its challengers, in particular the abortion provider Whole Woman’s Health, might have a legal basis to move forward.
“I think it’s pretty likely the Court is going to do something that allows ‘someone’s’ suit against SB8 to go ahead,” tweeted Raffi Melkonian, a Houston attorney, after the hearing. “I don’t know when they’re going to do that.”
The Supreme Court usually issues its opinions months after arguments. Since these two challenges — Whole Woman‘s Health v Jackson and US v Texas — were heard on a faster schedule, there’s speculation that a decision could also come quickly.
“The court clearly is in a hurry,” wrote Florida State University law professor Mary Ziegler before the hearing in a post on court-tracking site SCOTUSblog. She said the court seems to be taking the abortion issue as seriously as most Americans, and that the justices could rule before it hears oral arguments on December 3 in a Mississippi case directly challenging Roe v Wade.
In addition, data shows abortions have been severely curtailed in Texas since the law took effect — by as much as 50% according to researchers at the University of Texas at Austin. They reported that 2164 abortions were provided in September 2021, compared with 4313 in September 2020.
“The actual provisions in this law have prevented every woman in Texas from exercising a constitutional right as declared by this court,” said Justice Elena Kagan, clarifying that it was every woman who had not made a decision by 6 weeks.
“Usually, in these chilling effect cases, we’re kind of guessing,” she said. “Here, we’re not guessing. We know exactly what has happened as a result of this law. It has chilled everybody on the ground.”
Judge Edward Stone II, an attorney with the Texas Attorney General’s Office who argued for the state, denied Kagan’s assertion.
Nineteen medical organizations, including the American Medical Association, American College of Obstetricians and Gynecologists, American Academy of Family Physicians, American Academy of Pediatrics, and the American College of Physicians filed a friend of the court brief supporting both challenges, saying the Texas law allows legislators to interfere with the patient–doctor relationship and that it limits treatment options.
Texas argued that the only way to challenge the law at the federal level would be to be sued first.
Marc A. Hearron, a lawyer with the Center for Reproductive Rights who argued for Whole Woman’s Health, said that was untenable.
“What my friends on the other side are saying is that clinics should just violate the law,” and “subject themselves to the risk that they will be forced to close their doors,” said Hearron.
But even if providers decide to violate the law, “they may not find physicians, nurses, ultrasound technicians, staff members willing to work behind the desk, because this law targets all of them,” he said.
Plus, clinics run the risk that they will become permanent defendants because the law does not prohibit multiple suits, he said.
Whole Woman’s Health asked the justices to stop the law by preventing the state’s clerks from filing cases.
Federal Standing Not as Clear
The US Department of Justice sued Texas on September 9, saying the law negated the constitutional right to an abortion.
“The Act is clearly unconstitutional under longstanding Supreme Court precedent,” Attorney General Merrick Garland said at the time.
At the court, US Solicitor General Elizabeth B. Prelogar called it a “brazen attack” on the supremacy of federal law and said it would open the door to other states mounting similar challenges.
Kagan seemed to agree.
“The entire point of this law, its purpose, and its effect is to find the chink in the armor of Ex parte Young,” a 1908 law that “set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws,” she said, decrying that “after all these many years, some geniuses came up with a way to evade the commands of that decision.”
Stone waved off the concerns. “Nothing in this law even pretends that Texas courts could evade that because it can’t,” he said.
“Essentially, we would be inviting states, all 50 of them, with respect to their unpreferred constitutional rights, to try to nullify the law of — that this Court has laid down as to the content of those rights,” said Kagan.
Kavanaugh also seemed concerned about that possibility.
“It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights if this position is accepted here,” he said, citing a brief submitted by the Firearms Policy Coalition that supported the Whole Woman’s Health challenge.
Justice Neil Gorsuch seemed dubious that the Texas law would undercut anybody’s right to challenge.
“Often constitutional rights, of course, can only be enforced in a defensive posture, when an individual is faced either with potential liability, punitive damages, but also, of course, civil fines — fines and even criminal sanction, including prison time,” he said.
Stone argued that the US government is “not a proper plaintiff” and did not have the right to sue Texas or any of its officials because none were involved in enforcing the law. If the federal government didn’t like the law, it should ask Congress to fix it, said Stone.
After the hearing, Texas Attorney General Ken Paxton reiterated that position.
“The Biden Administration does not have the power to sue a state, such as Texas, just because it disagrees with a state law that protects the unborn,” he said in a statement.
A ruling on the challenges will not put an end to the litigation over SB 8.
“Even if the Supreme Court does rule that the abortion provider plaintiffs are allowed to sue, it is likely that there will still need to be more litigation in a federal trial court before SB 8 is actually determined to be unconstitutional and is blocked by a court order,” wrote Ian Millhiser, a Supreme Court scholar, after the hearing.
A federal judge in Austin did approve the Department of Justice’s request for a temporary halt to the law in October, but days later, the Fifth Circuit Court of Appeals ruled it could go back into effect while the legal questions were being pondered in the courts.
Oral arguments, US Supreme Court, November 1, 2021.
Alicia Ault is a Lutherville, Maryland-based freelance journalist whose work has appeared in publications including JAMA, Smithsonian.com, The New York Times, and The Washington Post. You can find her on Twitter @aliciaault.
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