Key U.S. Supreme Court justices express concern about Texas abortion law’s enforcement

The U.S. Supreme Court on Monday grilled attorneys for abortion providers, the federal government and Texas over the state’s controversial abortion law — and possibly hinted it might allow at least one legal challenge to the law to stand.

The Supreme Court heard around three hours of arguments over Texas’ abortion law, also known as Senate Bill 8, as part of two lawsuits — one lodged by abortion providers and the other by the U.S. Department of Justice. Both focused on procedural technicalities surrounding the law and the suits challenging it, not on abortion rights nor the constitutionality of the law itself.

The law has been in effect for two months.

The justices’ line of questioning signaled support for one of the cases and skepticism for the other. In the abortion providers’ lawsuit, the majority of justices pushed back on the enforcement mechanism that has allowed the law to skirt judicial review so far; in the DOJ’s suit, they seemed dubious of the federal government’s claims that it had a right to sue the state over the law.

Notably, conservative Justices Amy Coney Barrett and Brett Kavanaugh, who were among the five conservative judges that voted against temporarily blocking SB 8 on Sept. 1 when the law took effect, seemed unconvinced by the defendability of Texas’ unique enforcement mechanism.

“There's a loophole that's been exploited here or used here,” Kavanaugh said, noting that the same mechanism could be applied to limit other constitutional rights if allowed to stand. “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.”

Texas’ law, which blocks abortions at about six weeks into a pregnancy, has been successful in suspending most constitutionally protected abortions in the state by using a unique tactic: forbidding state officials from enforcing SB 8 and instead relying on private citizens to sue those who violate it. Typically, in suits aiming to overturn laws considered unconstitutional, courts don’t block the laws themselves — they block their enforcement. Since SB 8 is not enforced by any state officials, opponents seeking to block it have struggled to narrow their focus and name the right defendants.

Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said trying to interpret the Supreme Court justices’ comments during oral arguments can be tricky — but not this time.

“This wasn’t cryptic. This was pretty blatant,” Blackman said. “I think the clinics are going to win by a 6-3 vote.”

Blackman said he was surprised by how strongly the justices favored the providers’ case in their comments Monday. He said he’s not sure exactly what their order will entail, but he’s confident the court will rule in their favor.

Elizabeth Sepper, a law professor at the University of Texas at Austin, agreed that the justices left strong hints on how they'll rule.

“After this argument, the best prediction is we’ll probably get a relatively narrow ruling in favor of the abortion providers that will allow them to proceed in their suit,” Sepper said. She predicts the Supreme Court will allow court clerks to be ordered to stop docketing cases as a way to block the law.

Courts as weapons

Marc Hearron, a lawyer for a coalition of abortion providers, said during the proceedings that the law uses the courts in a way they weren’t designed to infringe on the constitutional right to an abortion.

“It’s the rules that have been created by the Texas Legislature that turn courts into a weapon that can be used to nullify constitutional rights,” he said.

Hearron argued lawsuits challenging SB 8 should be able to target Texas officials, state court judges, clerks and private parties because they are acting on behalf of the state. But Texas Solicitor General Judd Stone dismissed that idea, saying the state is explicitly forbidden from enforcing the law and that private citizens can file lawsuits of their own accord. Because no officials are enforcing the law, he said the state is protected from the type of relief that the U.S. and abortion providers are seeking.

Stone also defended private citizens’ ability to sue over abortions disallowed by SB 8, arguing that they can demonstrate injury because they could experience "extreme outrage" that could cause "psychological harm."

Much of the discussion Monday centered on how that enforcement mechanism could be replicated to cast a chilling effect over other rights protected by the Constitution: not just abortion rights, but also gun ownership, freedom of the press and same-sex marriage.

Kavanaugh pressed Texas on this point.

“We can assume that this will be across the board equally applicable as the Firearms Policy Coalition says to all constitutional rights?” he asked Stone. The Firearms Policy Coalition said in a filing in the abortion providers’ case that it denounced the way the law is enforced for fears it could infringe on “​​any other hotly debated constitutional right.”

Stone said yes. When pressed, he said copycat laws, even over other constitutional rights and with much loftier penalties, should be insulated from similar legal challenges.

Kavanaugh posed a hypothetical question to Stone: “Say everyone who sells an AR-15 is liable for a million dollars to any citizen. ... Would that kind of law be exempt from pre-enforcement review in federal court?”

Stone answered it would, unless Congress modified federal courts’ jurisdiction to do so.

Justice Elena Kagan refuted that point.

“Isn't the point of a right that you don't have to ask Congress?” Kagan said.

During the second hearing, Supreme Court justices expressed skepticism over the Justice Department’s standing — or right to sue — in the case. Chief Justice John Roberts called its argument "as broad as can be."

Kagan suggested the court could rule only on the providers' case, not the Justice Department case, to avoid the murkiness surrounding whether the federal government can directly sue Texas to block SB 8.

"If [abortion providers] were to prevail, we wouldn't even have to rule on the United States v. Texas case — that's very complicated for other reasons,” Kagan said. “We could just sort of leave that be."

In response, the counsel for abortion providers asked the court “that if it is not going to reinstate the injunction in the United States case, that it issues interim relief now against enforcement, because the laws are patently unconstitutional."

"This is an unusual suit. The U.S. does not lightly invoke an authority like this to sue a state," said U.S. solicitor general Elizabeth Prelogar. "If Texas is correct that it can nullify this Court's precedents ... then no constitutional right is safe."

Future far from clear

It remains to be seen how the justices will vote. A decision is unlikely to come the same day as the hearing but could be made soon. The three liberal justices on the Supreme Court and conservative Chief Justice John Roberts voted in favor of temporarily blocking the law in September. If Barrett and Kavanaugh side with them now, it would likely put enough votes in place to temporarily block the law’s enforcement.

However, even if the law is eventually overturned, abortion advocates fear that the right to an abortion is in still in grave jeopardy. On Dec. 1, the Supreme Court is set to take up another high-profile abortion case: Dobbs v. Jackson Women’s Health Organization. Many expect that abortion rights could be taken up as part of that case and fear that Roe v. Wade — which, along with subsequent rulings, affirms a person’s right to an abortion before fetal viability — could be overruled.

“Abortion rights are really under threat like never before,” said Amy Hagstrom Miller, head of Whole Woman’s Health, lead plaintiff in the providers’ lawsuit, during a press conference following the hearing. “Doctors have been forced to deny hundreds of patients the abortion care they need and deserve. Texans have been forced to remain pregnant against their will or to leave the state to get care.”

Texas Attorney General Ken Paxton said in a press conference he was grateful to be in the court Monday to represent anti-abortion viewpoints. He responded to a question over concerns about copycat laws that could target other rights, like gun ownership.

“The focus for me is this case,” Paxton said, commenting that each state is responsible to act based on the views of their own constituents. “I'm pleased to represent this state on this particular issue, and we're going to go forward doing that.”

Just outside the courthouse, anti-abortion groups that gathered to chant and pray for the court to preserve the law were met with resistance by reproductive rights advocates who called Texas’ law an infringement on women’s bodies.

Under SB 8, people or groups who have been successfully sued can face penalties of at least $10,000. If upheld, it ends abortion access for millions across the state.

The law has already stopped thousands of abortions in the state. All Texas abortion providers have had to shutter the bulk of the procedures they previously offered, with some ceasing to offer any abortions, even ones allowed under SB 8. Since then, people seeking abortions have sought services in other states, forming backlogs of Texas patients desperate for the procedure.

Correction, Nov. 1, 2021: A previous version of this story misspelled the name of the U.S. solicitor general. It is Elizabeth Prelogar, not Prolegar.

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Read more coverage about the state’s restrictive abortion law here:

• We annotated the provisions of Senate Bill 8 that outline the enforcement process, perhaps the most unusual aspect of the state’s new restrictions.
• The law’s unusual enforcement mechanism is leaving abortion providers across the state without a playbook to respond and few options to fight the restrictions in court.
• This new law is the latest, most devastating blow from lawmakers who have been on a warpath to steamroll abortion access for decades. Getting an abortion in Texas has become more difficult than anywhere else in the nation.
• While the law has widely been referred to a six-week ban, the reality is closer to two weeks. Calling it strictly a six-week ban fails to take into account the nuance in circumstances many people face when it comes to pregnancy.
• A Texas doctor from San Antonio is already facing two lawsuits for performing an abortion illegally under the state’s new law. He announced that he performed the procedure in a Washington Post column, saying that he “wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”
• In addition to this Texas law, advocates on both sides are closely watching a highly anticipated Mississippi case heading to the U.S. Supreme Court that could overturn Roe v. Wade. If the court were to overturn Roe, however, it could lead “trigger laws” across 12 states — including Texas — that ban all abortions to go into effect.