Supreme Court signals skepticism over Texas's six-week abortion ban

The Supreme Court sounded a note of skepticism Monday over Texas’s controversial six-week abortion ban, appearing ready to allow abortion providers to challenge the law in federal court.

The case did not deal directly with the ban’s lawfulness. Rather, the justices wrestled with whether the Department of Justice (DOJ) and abortion providers can bring federal lawsuits against Texas or state officials in an effort to block the law.

The challengers argued that Texas has effectively nullified the constitutional right to abortion and urged the justices to rule that federal courts may review, and potentially halt or invalidate, the six-week ban.

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“The rules that have been created by the Texas legislature ... turn the courts into a weapon that can be used to nullify constitutional right,” said Marc Hearron, who represented the abortion providers. 

Monday’s case marked the second time the Texas law, known as S.B. 8, has reached the justices. In a previous 5-4 ruling, which broke largely along familiar ideological lines, the conservative-majority court denied abortion providers' emergency request to block the law.

Since that Sept. 1 ruling — which did not address the measure’s constitutionality — litigation over S.B. 8 has percolated back up to the Supreme Court, while abortions in Texas have been curtailed.

The question of whether federal court is a proper forum to hear S.B. 8 challenges is complicated by the law’s unique legislative design, which critics have likened to a “bounty” system.

S.B. 8 authorizes citizens to file private lawsuits against those who perform, aid or abet an abortion after fetal cardiac activity is detected, typically around six weeks of pregnancy — before most women know they are pregnant. Successful suits under S.B. 8, which contains no exceptions for rape or incest, fetch at least $10,000.

Judd Stone, the solicitor general of Texas, said the challengers should not be permitted to bring federal suits against Texas or state officials because, by design, state actors are not charged with enforcing S.B. 8.

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Conservative Justices Brett KavanaughBrett Michael KavanaughVoting rights, Trump's Big Lie, and Republicans' problem with minorities Supreme Court agrees to hear case on HS coach's suspension over on-field prayers The Supreme Court, vaccination and government by Fox News MORE and Amy Coney BarrettAmy Coney BarrettSupreme Court blocks Biden's vaccine-or-test mandate for employers Conservative justices seem skeptical of Biden vaccine mandates Congressional Progressive Caucus backs measure to expand Supreme Court MORE were among the five-member majority in September who voted against blocking the Texas abortion ban. But during Monday’s arguments, they posed sharp questions to Stone about S.B. 8’s implications and structure. 

Kavanaugh, citing an amicus brief by a Second Amendment advocacy group, asked whether S.B. 8 could become a model “for suppression of other constitutional rights.”

“It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights if this position is accepted here,” Kavanaugh said. “The theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights.”

When Stone replied that Congress has the authority to bolster those rights through legislation, Kavanaugh pushed back on the suggestion. 

“Well, for some of those examples, I think it would be quite difficult to get legislation through Congress,” he said.

Barrett appeared skeptical that Texas state courts could provide the same scope of protections for abortion access as federal courts. 

“You cannot get kind of global relief in the same way that a ... federal court gives you relief from the prospect that the statute would be enforced against you,” she told Stone. “And you're saying that in state court these pre-enforcement actions do not offer that? They're just on an individual-by-individual basis?”

The justices seemed somewhat more cautious about whether to recognize the DOJ’s right to sue Texas in federal court. 

Elizabeth Prelogar, who last week was confirmed by the Senate as solicitor general, faced tough questions about how to define the federal government’s authority to sue states suspected of undermining constitutional rights.

“I share some of the concerns that have been voiced by my colleagues,” Chief Justice John Roberts told Prelogar. “You say this case is very narrow, it's rare, it's particularly problematic. But the authority you assert to respond to it is as broad as can be: It’s equity. You said we have the authority to sue states under equity  which is a limitless, ill-defined authority.”

Texas’s six-week ban is among hundreds of abortion restrictions that state legislatures have passed in recent years. Many such measures have the explicit goal of overturning Roe v. Wade, the landmark 1973 ruling that recognized a constitutional right to abortion before a fetus is viable, typically around 24 weeks of pregnancy.

The justices next month will hear arguments over a 15-week abortion ban in Mississippi. But while the Mississippi ban presents a straightforward clash with settled Supreme Court precedent, Texas’s atypical enforcement mechanism has thrown a wrench in the normal operations of judicial review.

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The dispute over S.B. 8 arose after a group of abortion providers, led by Whole Woman’s Health, brought a federal lawsuit this summer to block the law prior to its Sept. 1 effective date. The group identified Texas state court clerks and judges as defendants, as well as a private person whom the abortion providers believed would try to enforce S.B. 8.

The Texas defendants asked the federal judge overseeing the dispute to dismiss the case, which he declined to do, prompting them to appeal. The U.S. Court of Appeals for the 5th Circuit, siding with the defendants, agreed to pause the district court proceedings and declined to temporarily block the six-week abortion ban in the interim.

Whole Woman’s Health then filed an emergency petition to the Supreme Court asking the justices to halt the Texas restriction. The court on Sept. 1 voted 5-4 to deny the emergency request, with Roberts joining the court's three more liberal justices in dissent.

The majority, citing the “complex and novel” procedural questions raised by S.B. 8’s outsourcing of enforcement power to private citizens, said it was unclear whether the named defendants in suit “can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”

A week later, the Justice Department sued the state of Texas in federal court, seeking to block the law. The U.S. district judge agreed to temporarily halt the law, but the 5th Circuit reinstated S.B. 8 while the case proceeded through the courts. 

The DOJ asked the Supreme Court to address the matter. The justices agreed to do so, combining the Whole Woman’s Health and DOJ cases for the purpose of addressing whether federal courts can hear their disputes and potentially block or strike down Texas’s ban.

Some of Monday’s arguments dealt with technical aspects of the type of relief the court could grant if it sides with the challengers in the unusual case. One option included letting abortion providers seek a federal court order that would block Texas judicial clerks from processing S.B. 8 lawsuits.

Updated at 3:11 p.m.