The Supreme Court listened to two challenges to Texas’ controversial abortion law Monday. The video shows clips from oral arguments. The Supreme Court hearings could be the final stop in weeks of challenges since the law took effect back in September.
The challenges come in the form of cases Whole Woman’s Health v. Jackson and United States v. Texas. Neither case focuses on the constitutionality of the law itself, but rather whether or not abortion providers or the Justice Department can mount federal court challenges to the law.
A majority of the Supreme Court signaled they would allow abortion providers to pursue a court challenge to the law. The justices sounded less convinced that the Justice Department lawsuit should go forward. However, it was unclear how quickly the court would rule. It was also unclear whether it would issue an order blocking the law or require providers to ask a lower court put the law on hold.
At the heart of the challenge is the enforcement of the law. Rather than have state officials enforce it, the law deputizes private citizens to sue anyone who performs or aids and abets an abortion. If the lawsuit is successful, those who sue are entitled to at least $10,000.
Justice Brett Kavanaugh suggested Monday the unusual enforcement scheme could be problematic.
“There’s a loophole that’s been exploited here, or used here,” he said. Kavanaugh suggested the “principle” and “whole sweep” of a 1908 Supreme Court case would “suggest extending the principle here, arguably” and closing the loophole.
In their briefs, the state of Texas and architect of the law Jonathan Mitchell said the providers and the Justice Department lack the right to go into federal court, and can’t sue state judges and clerks who are not responsible for enforcing the abortion law. Texas and Mitchell also said there is no effective way of blocking the law, in part because federal courts can’t force state judges to abstain from hearing the lawsuits the law authorizes.
The court has another abortion case coming up after this one. The justices will hear a separate challenge to the decisions in Roe v. Wade and Planned Parenthood v. Casey in a case over Mississippi’s ban on abortion after 15 weeks on Dec. 1.
Elizabeth Prelogar, U.S. Solicitor General: “Texas designed SB eight to thwart the supremacy of federal law in open defiance of our constitutional structure. 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 and their borders, and block the judicial review necessary to vindicate federal rights. As this case comes to the court, there are three principal questions. First, is Texas responsible for this law? Second, can the United States sue to hold Texas to account? And third is the injunctive relief available, and the answer is yes, down the line.”
Marc Hearron, Attorney for Abortion Providers: “So this is a unique situation. I think the real danger is if this court does not allow the suit, then that will provide a roadmap for other states to abrogate other rights that have been recognized by this court.”
Elena Kagan, Associate Justice: “What exact relief are you requesting?”
Marc Hearron, Attorney for Abortion Providers: “We are requesting an injunction, so we have a pending class certification motion for a defendant class against the class, so we would be requesting an injunction against the commencement or the docketing of lawsuits against the clerks across the state of Texas, as well as injunctive relief against the state executive officials for their residual authority to enforce SB8.”
Judd Stone, Texas Solicitor General: “Petitioner’s pursuit of an injunction suffers from two fundamental problems. First, none of the individuals the petitioner sued are appropriate defendants under well-established Article 3 equitable principles. Second, petitioners ask for an expansion of access to the federal courts that only Congress and not this court may provide. Petitioners Article 3 and equitable problems again with what they really want an injunction against SB8, the law itself. They can’t receive that because federal courts don’t issue injunctions against laws, but against it, but against officials enforcing laws. No Texas executive official enforces SB8, either, and so no Texas executive official may be enjoined.”
John Roberts, Chief Justice: “As I understand, the only way in which you get federal court review is, of course, for somebody to take action that violates the state law and then be sued under the law and then have the opportunity to raise their defense in federal court eventually. And you’re saying that somebody is going to undertake that activity even though they’re going to be subject to suit for a million dollars repetitively and… because, that doesn’t exercise a chilling effect?”
Judd Stone, Texas Solicitor General: “That’s not what I’m saying at all your honor. What I’m saying is it doesn’t expand access to the federal courts.”