The Supreme Court on Monday heard arguments from challengers to a Texas law that prohibits abortion after six weeks of gestation, one of two cases justices are considering that could overturn 48 years of precedent on the issue.
At issue before the justices was the Texas Heartbeat Act, a Republican-backed law that has drawn opposition from the Biden administration Department of Justice.
The highest court heard two challenges to the novel Texas abortion law, which blocks almost all procedures in the state after the allotted time period unless a woman’s life is in danger. The second argument pertains to the Biden administration’s challenge to the law.
During two hours of oral arguments, justices considered whether abortion rights advocates and the federal government have the ability to sue Texas over the law based on how it was framed by lawmakers. Debate later turned to whether the Supreme Court can block state court clerks from putting lawsuits against abortion providers on the docket.
The hearings come a month before the Supreme Court considers the legality of Mississippi’s ban on most abortions after 15 weeks of pregnancy. That case, to be heard Dec. 1, was the first to reach the court from a wave of state laws intended to challenge the 1973 Roe v. Wade decision, which declared that access to abortion was a constitutional right.
On Monday, while considering the Texas law, Justice Neil Gorsuch pressed attorney Marc A. Hearron of the Center for Reproductive Rights, representing a coalition of Texas abortion providers, about whether the so-called “chilling effect” the state abortion ban has on providers is unique.
SUPREME COURT SET TO HEAR CHALLENGES TO TEXAS LAW BANNING ABORTION AFTER SIX WEEKS
“Do you agree that there are laws, defamation laws, gun control laws, rules during the pandemic about the exercise of religion, that discourage and chill the exercise of constitutionally protected liberties?” Gorsuch asked, to which Hearron said he agreed, conceding that some of those laws may only be challenged after the fact.
The Texas law, also known as S.B. 8, has temporarily succeeded through an unprecedented enforcement method permitting any person to bring a civil action suit against someone who performs an abortion or “aids or abets” someone getting the procedure after six weeks. If plaintiffs are successful, the law allows them to collect cash judgments of $10,000 from those they sue.
One of the key precedents involving the S.B. 8 debate is actually the 1908 case called Ex Parte Young, which allows individuals to bring lawsuits and enjoin government officials from acting when they enforce unconstitutional laws. Still, they must show a connection between the government official being sued and the purported unlawful act enforcing the unconstitutional law.
A majority of the justices signaled on Monday they may allow abortion providers to seek court challenges to the Texas law. Conservative justices Brett Kavanaugh and Amy Coney Barrett, also Trump appointees, posed questions on Monday about the structure of the law, which was written to make legal challenges more difficult and bring steeper financial penalties for practitioners who facilitate an abortion after six weeks of gestation.
“There’s a loophole that’s been exploited here, or used here,” said Kavanaugh, adding that the question is whether the court should “close that loophole.” Kavanaugh suggested that the “principle” and “whole sweep” of Ex Parte Young would “suggest extending the principle here, arguably,” and terminate the loophole.
Newly confirmed Solicitor General Elizabeth Prelogar argued on behalf of the DOJ Monday, saying, “Texas designed S.B. 8 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 in their borders, and block the judicial review necessary to vindicate federal rights,” Prelogar added.
Supreme Court justices first allowed the statute to go into effect on Sept. 1, after deciding not to act on an emergency appeal to block enforcement of the measure. The court later agreed to hear challenges brought forth by the Justice Department and Texas abortion providers, circumnavigating a typical appeals process.
Texas officials say they have no role in the law’s implementation and therefore cannot become targets for litigation, according to attorneys for the Lone Star State. They also argue the law does not impose an “undue burden” on women seeking abortion care because they have up to six weeks of pregnancy to do so and are allowed to travel out of state for procedures.
In early October, a federal district judge sided with the DOJ and claimed S.B. 8’s enforcement was an “offensive deprivation” of a constitutionally-protected right under Roe v. Wade. One week after that decision, a panel of appeals court judges allowed the law to remain in effect while legal challenges played out.
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Last week, the Supreme Court allowed the Texas abortion ban to remain in effect until arguments started Monday, signaling justices plan to act on the case soon after deliberations conclude this week.
