The Supreme Court heard oral arguments on Monday regarding Texas’s recently enacted pro-life legislation banning abortions after six weeks of gestation or once a heartbeat has been detected.
Two cases, Whole Woman’s Health v. Jackson and United States v. Texas, were converged into one three-hour hearing. In the first case, the Supreme Court was asked to weigh in on the Texas Heartbeat Act’s private enforcement mechanism. In the second case, the justices were asked to consider whether President Joe Biden’s Department of Justice has the right to sue Texas in order to block the law.
The legislation, also known as S.B. 8, was signed by Texas Gov. Greg Abbott (R) in May and went into effect on September 1. Since women do not often detect pregnancy prior to the sixth week, the law effectively bans abortions in the state. The law is different from other pro-life legislation tried in the past, in that the general public — instead of the government — can enforce it. Any private citizen may file a civil lawsuit against an abortion provider or any other individual who “aids or abets” a “criminal abortion.” Abortionists and those who “aid or abet” an abortion after a fetal heartbeat is detected must pay damages of at least $10,000 for each abortion performed or assisted.
On October 15, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit voted 2-1 to temporarily reinstate the law while appeals are ongoing, reversing a lower court’s ruling that had blocked enforcement of the pro-life law. The federal appeals court ruled that the Texas Heartbeat Act can remain in effect while litigation continues over whether the law is constitutional.
In a surprising order on October 22, the Court granted review – called a writ of certiorari – sought by several abortion clinics, including Whole Women’s Health and various Planned Parenthoods. Although the Supreme Court granted certiorari before judgment several times during the Trump administration, typically multiple years pass without the justices short-circuiting the normal process of appellate review.
Even when the Court does “grant cert” before the relevant appeals court has rendered its judgment, it usually still goes through a normal process of filing briefs and preparing for oral argument, which typically takes more than three months. Here, by contrast, the justices had just granted cert on October 22, ordered all the briefs to be filed within days, and scheduled oral arguments scheduled for the following week – just ten days from granting review to hearing the case.
- Whole Woman’s Health v. Jackson
A large part of Monday’s argument centered around whether the law should be subjected to federal pre-enforcement review — more pointedly, whether the Texas Heartbeat Act aligns with a previous ruling in the hallmark 1908 case called Ex Parte Young, which allows pre-enforcement lawsuits against state officials when the state is at odds with the U.S. Constitution of federal law.
Justice Elena Kagan asked Mark Hearron, who argued on behalf of Texas clinics challenging the law, what they would like the Supreme Court’s decision to be. She also acknowledged the complexity of the case, noting that the “procedural morass we’ve gotten ourselves into with this extremely unusual law.”
Hearron replied, saying the clinics would ultimately like to see the Court order an injunction keeping Texas courts from docketing lawsuits brought under the Texas Heartbeat Act and an injunction keeping state officials from enforcing the law. He further argued that S.B. 8 paves a way for states to discount other laws they do not like using the private enforcement mechanism, even if those laws are protected by the Constitution.
“It will provide a roadmap for other states to abrogate other rights that have been recognized by this court,” he said.
Justice Sonia Sotomayor emphasized the “chilling effect” of the law, and both Justice Samuel Alito and Chief Justice John Roberts question whether the state’s court process can provide relief to Texas clinics.
Justice Amy Coney Barrett, whose private pro-life stance is well-documented, seemed to say that state court could not provide Texas clinics the chance to fully defend the constitutionally protected right to abortion, as that right was declared by previous Supreme Court rulings, not by the explicit text of the U.S. Constitution.
“The full constitutional defense cannot be asserted in the defensive posture, am I right?” Barrett said, in a line of questioning more favorable to the clinics.
Kavanaugh questioned whether lawsuits against state judges are allowed under Ex Parte Young, saying that factor has “been a real sticking point” for him.
The justices further broached whether judges could be considered enforcers of the law — Texas argued that judges are not enforcers because the enforcement of the law was designed to be left in the hands of private individuals, though clinics do not agree. Kavanaugh cited Shelley v. Kraemer in 1948, in which the judges were labeled “enforcers of the law,” however Justice Alito did not agree with the characterization.
Texas Solicitor General Judd Stone argued in defense of S.B. 8, saying that while clinics are seeking an injunction against “the law itself,” injunctions can actually only be issued against specific officials to keep them from enforcing the law.
Chief Justice Roberts seemed to echo Justice Sotomayor’s fears of the “chilling effect” by asking Stone a hypothetical question raising the bounty from $10,000 to $1 million.
“Do you think in that case, the chill on the conduct at issue here would sufficient to allow federal court review prior to the state court process?” Roberts asked.
Stone said the change in price did not make a difference, arguing that the case does not challenge sovereign immunity. He also noted that there are currently 14 pre-enforcement review challenges pending in a multi-district litigation in Travis County state court. Roberts pushed back, questioning whether the bounty, no matter what cost, could disincentivize people from challenging a law’s constitutionality in the hopes of eventually taking the case to federal court.
“It’s not a question of the federal courts being more open. It’s a question of anybody having the capacity or ability to go to the federal court because nobody is going to risk violating the statute because they’ll be subject to suit for a million dollars,” Roberts said. That — that takes a lot of fortitude to undertake the prohibited conduct in that case.”
Kagan, who is typically more liberal-leaning, asserted that the entire point of the Heartbeat Act’s design was to “find the chink in the armor of Ex Parte Young.”
“…After, oh these many years, some geniuses came up with a way to evade the commands … that states are not to nullify federal constitutional rights,” Kagan said with sarcasm, apparently scoffing at the idea that the Supreme Court could be cleverly blocked from intervening.
“To say, ‘Oh we’ve never seen this before, so we can’t do anything about it’ — I just don’t understand the argument,” she continued.
Justice Sotomayor asked whether the Texas law allowed private individuals to act as the Texas Attorney General, thereby enforcing the law as an extension of state power and undermining the original private enforcement mechanism of the law. Stone disagreed and held to the state’s assertion that Texas officials have no involvement in the enforcement of the law.
“The attorney general simply doesn’t have any control of the procession of S.B. 8 lawsuits in any way,” Stone said.
- United v. Texas
In the second half of the hearing, the justices first heard from Elizabeth Prelogar, who represented the United States in her first argument as the newly confirmed solicitor general.
Justice Clarence Thomas, who celebrated his 30th anniversary as a Supreme Court justice on Monday, pressed Prelogar on what interest the United States has in intervening to block Texas’ law and asked if she had any examples of the United States previously acting in a similar manner. Prelogar said she could not think of any equivalent examples because of the unique nature of Texas’s law.
When Justice Kagan asked how the court should craft relief, Prelogar said the United State stands by the district court’s initial decision to issue an injunction against Texas — which the Fifth Circuit subsequently lifted. Prelogar asserted that state judges would be bound by an injunction against Texas.
“It’s unprecedented … to enjoin a state judge from even hearing a case. When has that been done? … A judge is a neutral arbiter,”Alito rebutted.
Justices Alito, Gorsuch, and Roberts all raised concerns about Prelogar’s arguments regarding the “chilling effect,” saying many laws chill constitutional rights and questioned what makes Texas’s law so different that the Biden administration would intervene.
Chief Justice Roberts refuted the idea that it is “traditional” for federal courts to issue an injunction keeping state court clerks and judges from filing lawsuits after Prelogar attempted to normalize the action as a means of blocking unconstitutional laws.
“I recognize that this is a novel case. That’s because it’s a novel law,” Prelogar replied.
Stone returned to argue for Texas in the second case. He started out by saying that Congress would have to authorize the federal government to intervene, rather than the federal government acting of its own accord. He further argued that it is an “extraordinary expansion of federal power that the government is asking for here.”
Stone also argued that Texas has not nullified any laws after Justice Kagan said accepting Texas’s position would be “inviting states, all 50 of them, to try to nullify the law this court has laid down.”
Jonathan Mitchell, who represents individuals bringing lawsuits under S.B. 8 and who played a primary role in developing the law, spoke after Stone and argued that federal courts cannot keep private citizens from filing lawsuits.
“The state has passed a law giving them the option to sue, and then washed its hands of the matter,” he said.