Today, the U.S. Supreme Court heard arguments by the Justice Department and Texas abortion providers on the legal challenges to Texas’ new abortion law. The Supreme Court focused on how the law, commonly referred to as Senate Bill 8, is enforced and not on abortion rights themselves.
According to The Texas Tribune, the court considered two suits against S.B 8, which blocks abortions as early as six weeks into a pregnancy. One is waged by the federal government, the other by a group of abortion providers and advocates.
The legal battle over S.B 8 began the day it took effect on Sept. 1. Abortion providers asked the court to block the law, arguing that it was violating the 1973 Roe v. Wade ruling by banning abortions in Texas after six weeks of pregnancy.
Eight days after the court declined to block S.B 8, the Justice Department sued Texas, arguing that the bill allowed the state to unconstitutionally ban abortion while making it impossible for the federal courts to bring the law under judicial review.
The first argument started at 10 a.m and concerned a challenge to the law brought by abortion providers in Texas. Whole Woman’s Health v. Jackson, asked the court to consider whether a state “can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by offloading its enforcement to the general public.
Arguing that the Texas law was blatantly unconstitutional and was chilling people’s exercise of their rights, Marc A. Hearron, a lawyer with the Center for Reproductive Rights, said the Supreme Court should enjoin clerks of Texas state courts from accepting such lawsuits.
Some of the reasons Hearron gave as to why private lawsuits brought under S.B 8 are unlike typical tort suits include; anybody can sue (A reason that Justice Breyer called “debatable.”), the legal fees and the $10,000 paid to successful plaintiffs are serious and S.B 8 provides for a mandatory injunction to prevent further violations of the law, rather than to prevent more harm to the plaintiff, as reported by the New York Times.
The Second argument brought up in court concerned the Biden administration’s separate challenge to S.B 8. In the case, United States v. Texas, No. 31-588, the court agreed to answer the question: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials or all private parties to prohibit S.B. 8 from being enforced?”
Elizabeth B. Prelogar, The U.S solicitor general, argued first, telling Justice Thomas that the Justice Department sued not because Texas enacted an unconstitutional law, but because Texas deliberately structured the law to prevent federal courts from doing anything about the fact it violates the Constitution.
The Court agreed that Texas making it difficult for abortion providers to indicate rights was a “force for argument”, but were concerned about the mechanisms for relief, stating a lot of the briefs received suggest there should be a rule that only applies to this case, which is inconsistent with the rule of law.
Prelogar was followed by Judd Stone, Texas Solicitor General, who was grilled by Justices Sonia Sotomayor and Elena Kagan on Texas’ argument that Congress could step in and write legislation that would prevent states from passing such laws, as reported by CNN.
Stating that, “This is not limited to abortion. That’s the point that’s been raised. It’s limited to any law that a state thinks it’s dissatisfied with.”
Kagan also rejected Stone’s assertion that the United States is overstepping its boundaries in bringing its suit. If the Supreme Court upholds S.B 8, “any state can effectively nullify any federal constitutional law,” she said.
Jonathan Mitchell, a former solicitor general for Texas and the main architect of the unique structure of the Texas abortion law, argued “federal court can’t bar private citizens from filing lawsuits” after Sotomayor asked him why those who sue abortion providers under S.B. 8 are not agents of the state.
“The state has passed a law giving them the option to sue, then washed their hands of the matter, so there is no joint participation in their decision,” commented Mitchell.
He summarized, “It’s not Texas’ fault for finding a gap in what Congress allowed for in pre-enforcement lawsuits,” saying the DOJ is invoking sovereign interest because they think congress didn’t go far enough.
The final US rebuttal stated, “The USA filed this suit because there was no remedy for the providers yet. The law had been permitted to take effect and immediately chilled constitutional rights like abortion after 6 weeks. The nature of the sovereign interest is to prevent states from circumventing judicial review of constitutional claims (not just for abortion). Let’s really think about what it means that the State of Texas is saying that nobody can effectively sue to challenge this law. If Texas can do that, no constitutional right is safe.”
After almost three hours of lively arguments, a majority of the justices seemed inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a challenge to a Texas law, as reported by The New York Times.
That would represent an important shift from a 5-to-4 ruling in September that allowed the law to go into effect.