Nov. 1, 2021 – During 3 hours of oral argument on Monday, an apparent majority of Supreme Court justices appeared receptive to blocking a Texas law essentially banning abortion after 6 weeks.
They seemed less sure that the federal government, which is also challenging the law, would be able to sue Texas.
The 8th Senate Bill, which went into effect September 1, allows any private individual, anywhere in the state, to file lawsuits against anyone who performs, instigates, or “aids” or “favors” an abortion. If successful in court, the plaintiff will be entitled to at least $ 10,000 and will not have to pay legal fees. Rather, the defendants are obliged to bear all legal costs.
A majority of judges turned down an urgency motion to stop the law in September, but they agreed to quickly hear the challenges in person.
At Monday’s hearing, it appeared that some judges who had left the law – Conservatives Amy Coney Barrett and Brett Kavanaugh in particular – now agreed that its challengers, particularly abortion provider Whole Woman’s Health, might have a legal basis to move forward move.
“I think it is quite likely that the court will do something that will allow someone to take action against SB8,” tweeted Raffi Melkonian, a Houston attorney, after the hearing. “I don’t know when you’re going to do that.”
The Supreme Court usually delivers its opinions months after the arguments. With these two challenges – Whole Woman’s Health v Jackson and United States v Texas – being heard more quickly, there is speculation that a decision could also be made quickly.
“The court is clearly in a hurry,” Florida State University law professor Mary Ziegler wrote in a post on the SCOTUSblog law enforcement website before the hearing. She said the court appeared to take the issue of abortion as seriously as most Americans, and that judges could decide before the court hears oral arguments on Dec. 3 in a Mississippi case in which Roe is challenged directly against Wade.
In addition, data shows that abortions in Texas have been severely restricted since the law went into effect – by up to 50%, according to researchers at the University of Texas at Austin. They reported that 2,164 abortions were performed in September, compared with 4,313 in September 2020.
“The actual provisions of this law have prevented any woman in Texas from exercising any constitutional right as stated by this court,” said Judge Elena Kagan, making it clear that it was every woman who did not make a decision within 6 weeks would have.
“Usually in these cases we advise with deterrent effects,” she said, adding: “We do not advise here. We know exactly what happened because of this law. It cooled everyone on the floor. “
Judd Edward Stone II, a Texas Attorney General who campaigned for the state, denied Kagan’s allegation.
Nineteen medical organizations, including the American Medical Association, the American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, the American Academy of Pediatrics, and the American College of Physicians, submitted a friend of the court letter supporting both challenges, saying , Texas law allows lawmakers to intervene in the doctor-patient relationship and restrict treatment options.
Texas argued that the only way to challenge the law at the federal level is to be sued first.
Marc A. Hearron, an attorney for the Center for Reproductive Rights, who advocated the health of the whole woman, said this was untenable.
“What my friends on the other hand are saying is that clinics should just break the law” and “run the risk of being forced to close their doors,” Hearron said.
But even if vendors decide to break the law, “they may not find doctors, nurses, ultrasound technicians or staff willing to work behind the desk because this law targets everyone,” he said.
In addition, clinics run the risk of being constantly charged because the law doesn’t prohibit multiple lawsuits, he said.
Whole Woman’s Health urged judges to stop the law by preventing state officials from filing cases.
Federal position not so clear
The US Department of Justice sued Texas on September 9, saying the law negated the constitutional right to abortion.
“The law is clearly unconstitutional after longstanding Supreme Court precedent,” Attorney General Merrick Garland said at the time.
In court, US Attorney General Elizabeth B. Prelogar called it a “shameless assault” on the supremacy of federal law and said it would open the door to other states facing similar challenges.
Kagan seemed to agree.
“The whole point of this law, its purpose, and effect is to find the rift in the armor of Ex Parte Young,” a 1908 law that “establishes a rationale for how our government should work and how people can do it “. request a review of the unconstitutional state laws, ”she said, criticizing that“ after so many years some geniuses have found a way to evade the orders of this decision ”.
Stone waved off the concern. “Nothing in this law states that Texas courts can circumvent this because it cannot,” he said.
“In essence, we would be states, all 50 of them, in terms of theirs
non-preferential constitutional rights to attempt to repeal the law of – which this court established regarding the content of those rights, “Kagan said.
Kavanaugh also seemed concerned about this possibility.
“It could be the right to freedom of expression. It could be the free exercise of religious rights. It could be rights of the second amendment if this position is accepted here, ”he said, citing a letter from the Firearms Policy Coalition supporting the whole woman’s health challenge.
Judge Neil Gorsuch seemed doubtful that Texan law would undermine everyone’s right to challenge.
“Often times, of course, constitutional rights can only be enforced in a defensive stance when a person faces either potential liability, punitive damages, but of course civil fines – fines and even criminal sanctions, including prison sentences,” he said.
Stone argued that the US government was “not a real plaintiff” and had no right to sue Texas or any of its officials because no one was involved in enforcing the law. If the federal government doesn’t like the law, it should ask Congress to correct it, Stone said.
After the hearing, Texas Attorney General Ken Paxton reiterated this position.
“The Biden administration does not have the power to sue a state like Texas just for disagreeing with a state law protecting the unborn child,” he said in a statement.
A decision on the challenges will not end the SB 8 litigation.
“Even if the Supreme Court rules that abortion providers’ plaintiffs can sue, it is likely that more litigation will be required in federal court before SB 8 is actually found unconstitutional and blocked by a court order,” wrote Ian Millhiser, a Supreme Court scholar, after the hearing.
A federal judge in Austin approved the Justice Department’s motion for a temporary suspension of the law in October, but days later the Fifth District Court of Appeals ruled that it could come back into effect while the legal issues were being discussed in the courts.