A sharply divided Supreme Court will gather Monday to once again consider a Texas law that bars abortion at around six weeks of pregnancy, reigniting a debate concerning the most restrictive law in the country.
Oral arguments come two months to the day after a 5-4 court allowed the law to go into effect, halting most abortions in the country’s second largest state, and flooding clinics in nearby states with patients from Texas.
Amidst a nationwide firestorm, the Supreme Court agreed to fast-track two appeals brought by a coalition of abortion providers and the Biden administration, signaling that the justices understand the case to be one of the most urgent the court has considered under Chief Justice John Roberts.
Lawyers fighting the law will argue that it is blatantly unconstitutional and was designed with the express intent to make challenges in federal court nearly impossible, therefore nullifying a woman’s constitutional right to an abortion.
SB 8, the law in question, bars abortions after the detection of a fetal heartbeat at around six weeks — often before a woman knows she is pregnant — and is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.
After the justices allowed the law to go into effect on September 1, with Roberts joining the liberal justices in dissent, women in the state scrambled across state borders and lower-income women were left with few options. The law has no exception for rape or incest.
The Biden Justice Department acknowledged to the court that “Texas is not the first State to question Roe.”
“But rather than forthrightly defending its law and asking this Court to revisit its decisions, Texas crafted an ‘unprecedented’ structure to thwart judicial review,” acting Solicitor General Brian Fletcher said in a court brief.
The justices’ new, more comprehensive look at the law comes as polls found that public opinion of the justices has reached a new low, and as progressive groups are pushing to add more members to the court in order to dilute the conservative majority.
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Each side’s arguments
On Monday, the justices will limit their review to the law’s novel structure, which bars state officials from enforcing it.
Instead, private citizens — from anywhere in the country — can bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law. Critics say the law was crafted to shield it from challenges in federal courts and stymie attempts by abortion providers and the government to sue the state and block implementation.
The justices will hear two disputes. First, Marc Hearron, a lawyer for a coalition of abortion providers, will argue that the providers should be able to proceed with a lawsuit targeting not only Texas officials but also state court judges, clerks and any private parties who are responsible for implementing the law. The crux of the argument is that the state legislature cannot craft a law that’s insulated from review in federal courts, particularly when the state has delegated enforcement to the general public.
While the state would be immune from such a lawsuit under normal circumstances, Hearron will argue, in this instance the case can go forward because a federal constitutional right is at stake and private individuals are acting as agents of the state.
“The courthouse clerks and judges who are defendants in this action are unquestionably connected to the enforcement of this new law,” Hearron said in court briefs last month. “In addition, the state executive officials named as defendants cause distinct injuries” to the clinics “through threat of their indirect enforcement authority” under the law.
The second appeal comes from the Department of Justice, seeking to block the law. Here, the justices will consider whether the United States has the legal authority to step in to sue the state.
In announcing the lawsuit in September, Attorney General Merrick Garland said the law deputizing private citizens to serve as “bounty hunters” amounted to an attempt to thwart judicial review.
He said the US has the authority to ensure that Texas cannot “deprive individuals of their constitutional rights” through such a “statutory scheme.” He emphasized that the law interferes with the ability of federal actors in the state to carry out their constitutional duties.
Still pending is a request from the Justice Department to freeze the law while the appeals process continues.
Solicitor General Elizabeth Prelogar, confirmed to the post last week, will argue on behalf of the Biden administration.
In response to both disputes, Texas says neither case can proceed because the state is not the proper defendant since SB 8 bars state officials from enforcing the law.
Texas Solicitor General Judd Stone emphasized in briefs that neither case “presents a case or controversy” and that both challenges should be dismissed.
Targeting the Biden administration’s argument that federal law is supreme, Stone said the Constitution does not allow a “grant of federal power to sue whenever the United States wants.”
Texas says that while the law bars pre-enforcement challenges, lawsuits in state courts can go forward because private individuals are authorized to bring civil suits against anyone who has helped a woman obtain the procedure.
But critics note that such challenges will take time to work their way through the system and that in the meantime, most clinics in the state have stopped performing abortions because the law mandates draconian penalties against providers who violate it, including damages of at least $10,000 per procedure.
While both the providers and the Biden administration won challenges in federal district court, the conservative 5th US Circuit Court of Appeals reversed and allowed the law to remain in effect.
Impact of the law thus far
Supporters and critics of the law weighed in with “friend of the court” legal briefs, attempting to illustrate the broad impact of a potential ruling.
Massachusetts Attorney General Maura Healey, a Democrat, leads a coalition of 24 attorneys general siding with the abortion providers in the state. In their brief, Healey detailed how clinics in neighboring states are overwhelmed with patients from Texas. Healey warned the justices that if they were to greenlight the Texas law, other states could draft similar laws in areas such as gun rights, marriage equality and voting rights.
Healey told the court that the states recognize the “vital role” that judicial review plays in resolving tensions between a state’s policy preference and a constitutional right. “Where longstanding precedent clearly and unambiguously forecloses a particular policy as unconstitutional, a State cannot be permitted to disregard that precedent by passing an unconstitutional law and shielding it from judicial review,” Healey argued.
Indiana and 19 other Republican-led states filed a brief in support of Texas, arguing that the district court that ruled in favor of the Department of Justice “threatens to expose every State in the Union to a suit by the federal Executive Branch whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere.”
