WASHINGTON –Texas’ six-week abortion ban gets two hours of attention Monday at the U.S. Supreme Court, with the Biden administration and clinics pleading for justices to slap down the effort to insulate an unconstitutional law by outsourcing enforcement to private citizens.
Activists on both sides gathered outside the court for the momentous morning.
Oral arguments began at 10 a.m. in Washington and are streamed live on the court’s website.
“Texas delegated enforcement literally any person anywhere – except its own state officials. The only conceivable reason for do so was to evade federal court review,” argued Marc Hearron, lawyer for the Center for Reproductive Rights and abortion providers. The novel mechanism not only “transforms Texas state courts from a forum for the protection of rights into a mechanism for nullifying them,” if allowed to stand it “would provide a roadmap for other states to abrogate any decision of this court with which they disagree.”
Abortions have been cut in half since Senate Bill 8 took effect Sept. 1, after a 5-4 majority refused to delay enforcement.
That vote sent the strongest signal in decades that the court could soon overturn Roe vs. Wade, the 1973 landmark that recognized a woman’s right to terminate a pregnancy through viability, when a fetus can survive outside the womb.
That’s four months later than the cutoff in SB 8, when embryonic cardiac activity can be detected.
But even some of the justices who refused to halt enforcement expressed doubts about SB 8.
Justice Amy Coney Barrett, one of three Trump-appointed justices and among the most conservative, jumped in quickly with questions sympathetic to the abortion clinics, noting that the law explicitly limits claims by defendants that SB 8 imposes an “undue burden” – a key test since 1992.
“The full constitutional defense cannot be asserted” by a defendant, she said.
The justices expressed heartburn about the abortion providers’ unusual request for an order that would tie the hands of state judges, barring them even from hearing SB 8 lawsuits.
“You might appreciate that the idea of suing the judges would garner our attention,” Chief Justice John Roberts said.
The structure of SB 8 leaves little choice, Hearron said, because the state “is trying to nullify the exercise of a constitutional right… by delegating enforcement to the public, and taking away the normal ordinary executive officials and then also creating special court rules.”
Justice Neil Kavanaugh pressed a related concern – that the clinics’ position would open the floodgates to federal orders barring state court clerks from accepting certain types of lawsuits. Hearron sought to assuage that concern: “This is a unique law” and such orders are only necessary in this unusual instance.
Texas has called the federal meddling in a state law creating a private right to file a lawsuit unprecedented. The federal government’s top appeals lawyer agreed.
“The state has structured this scheme in a deliberate attempt to prevent federal courts from doing anything about the constitutional violation. and because a state has never before crafted an enforcement scheme like this, there has not been the kind of situation that would prompt the United States to intervene in this manner,” argued Elizabeth Prelogar, the U.S. solicitor general.
Until Sept. 1, the court had never allowed a so-called “fetal heartbeat” law to take effect, and more than a dozen states had tried. Advocates on both sides took that as an omen ahead of Dec. 1 arguments on a 15-week ban adopted by Mississippi — a case that puts Roe directly in the crosshairs.
The Justice Department has sued the state of Texas, insisting the federal government has the right to protect constitutional rights. Abortion providers have sued a state judge and county clerks, seeking to enjoin them from handling SB 8 lawsuits.
The justices heard one hour of argument on each case back to back.
The question is effectively the same in both cases: whether the Legislature can craft a law impervious to federal court review, even though the ban obviously violates Roe and the 1992 ruling in Casey vs. Planned Parenthood that allowed restrictions unless they pose an “undue burden.”
Texas and other states have tried for decades to chip away at abortion access under those rulings.
SB 8 allows awards of at least $10,000 to anyone who sues a doctor or anyone else who “aids or abets” a post-heartbeat abortion. Nearly all abortions in Texas and other states are done in the first 8 weeks. Many women are unaware they’re pregnant at six weeks.
Hardly any lawsuits have been filed but the threat alone has throttled the industry, as intended.
“Even one day of abortion services could result in years of litigation and millions of dollars in legal fees and costs, not to mention the threat of liability that starts at $10,000 per abortion, per defendant,” the abortion providers argued in a brief filed last week.
SB 8 prohibits doctors and others from defending themselves on the basis that they believe the law is unconstitutional. Even if they win, plaintiffs never have to pay their legal fees – and the judgment isn’t binding on other lawsuits involving the same allegedly illegal abortion. A defendant can’t seek federal court protection before they violate the ban and lose a lawsuit.
The chief justice pressed Texas solicitor general Judd Stone, arguing his first case before the court, on the expansive deterrent built into SB 8.
What if the bounty were $1 million? Roberts asked. “Nobody is going to risk violating the statute because they’d be subject to a suit for a million dollars. That takes a lot of fortitude to undertake the prohibited conduct in that case. And under this system, it is only by undertaking the prohibited conduct that you can get into federal court.”
“Undoubtedly would increase the chill,” Stone conceded, but sovereign immunity would still shield Texas from federal court review. “No number would suddenly cause the federal courts to become more open” to defendants trying to challenge the constitutionality of SB 8.
Texas argues that SB 8 lawsuits are no different from lawsuits involving deceptive trade practices or employment discrimination. The Biden administration and abortion clinics don’t get standing to block the law just because they don’t like it, because “Texas government officials are prohibited by law from enforcing SB 8 either directly or indirectly.”
Justice Neil Gorsuch, a conservative, pointed out that plenty of state laws chill the exercise of constitutional rights. He cited gun control laws, defamation laws, even mask mandates during a pandemic, and noted that it’s not terribly unusual that people who don’t like such laws can’t get a court to preemptively strike down such restrictions but have to wait until they’re enforced.
At one point Justice Clarence Thomas, another conservative, asked whether SB 8 plaintiffs are effectively acting as private attorneys general – that is, as agents of the state.
“Every tort action undoubtedly advances a state preferred policy,” Stone responded.
But normally in a tort action, Thomas responded, plaintiffs must show they suffered some sort of injury. Stone likened SB 8 to an “outrage” tort in which someone feels extreme moral or psychological harm at someone else’s action.
“Forgive me but I don’t recall an `outrage’ injury,” Thomas said.
Jonathan Mitchell, a former Texas solicitor general, crafted the law explicitly hoping to evade federal court oversight. As lawyer for three individuals who want to protect their right to file SB 8 lawsuits, he shared time with Stone.
Mitchell, in a brief last week, called the law “the heavy artillery,” the sort of tool a state might use only with a topic like abortion that inspires intense “legal and moral opposition.” And, he argued, the only reason clinics are afraid to perform post-heartbeat abortions is because they know that Roe isn’t settled law.
SB 8 “has been effective in deterring post-heartbeat abortions primarily because the future of Roe v. Wade is uncertain. Even critics of SB 8 recognize this fact,” he wrote.
The Justice Department has called Texas’ efforts to avoid federal review “breathtaking.” Elizabeth Prelogar, confirmed only last Thursday as the new solicitor general of the United States, argued the case.
“States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the court’s decisions in their borders, and block to judicial review necessary to vindicate federal rights,” she argued. “If Texas can nullify Roe and Casey in this manner, then other states could do the same with other constitutional rights or other decisions of this court that they disfavor. Federal courts are not powerless to craft relief to stop that intolerable threat to our constitutional hierarchy.”
Abortion providers conjure a dystopian future if the court allows SB 8 to stand, with states able to brazenly violate any well-established constitutional right by setting up a “rigged” system.
“S.B. 8 is intended to, and in fact does, impose an overwhelming chill on its targets’ activity. Physicians, nurses, ultrasound technicians, and anyone else aiding a patient in obtaining even a single prohibited abortion could all be sued in hundreds of duplicative suits, in courts in every Texas county, by an unlimited number of people with no personal connection to the abortion,” the Center for Reproductive Rights in a brief last week.
Justice Elena Kagan, one of the three liberals, sought to poke a hole in Stone’s position by noting that if Texas had enacted an ordinary heartbeat ban, defendants could file a challenge against the state attorney general even though prosecutions are conducted by district attorneys elected locally by county.
The separation between state officials and the enforcers under SB 8 – private litigants — “shouldn’t matter for the same reason,” Kagan said.