Three-hour hearing pit Biden administration and clinics against Texas, which insists they lack standing to challenge Senate Bill 8 because private citizens enforce it through lawsuits.
WASHINGTON — Texas’ six-week abortion ban raised enough eyebrows at the Supreme Court on Monday to suggest the justices may reject the attempt to avoid federal court oversight by handing off enforcement to private citizens.
The Biden administration and abortion clinics pleaded for justices to see the outsourcing as an artifice designed to let Texas get away with a flagrant violation of women’s rights. Allowing Texas to succeed would be “extraordinary, and extraordinarily dangerous for our constitutional structure,” because it would mean that states could nullify any federal right they dislike, warned the U.S. government’s top appellate lawyer, solicitor general Elizabeth Prelogar.
“The state of Texas hasn’t nullified anything,” insisted Judd Stone, the Texas solicitor general, arguing that in any event, Senate Bill 8 is impervious to challenge in federal court because state officials don’t enforce it.
Activists on both sides gathered outside during the momentous session that lasted nearly three hours, an hour longer than the court had set aside, reflecting passions surrounding abortion rights and the sense that a half-century of precedent could soon fall.
Arguments focused on the unusual enforcement scheme in SB 8, which offers awards of at least $10,000 to anyone who sues a doctor or anyone else who “aids or abets” an abortion once embryonic cardiac activity can be detected.
That’s around six weeks, which is weeks before many women realize they are pregnant and four months before a fetus can survive outside the womb.
Since 1973, the court has recognized the right to terminate a pregnancy through viability. Federal courts have never before allowed a so-called “fetal heartbeat” ban to take effect, and more than a dozen states tried. But SB 8 was designed to confound the courts, and abortions have been cut in half since Sept. 1, after the court’s 5-4 majority refused to delay enforcement.
That vote sent the strongest signal in decades that justices could soon overturn Roe vs. Wade, the landmark stemming from a Dallas woman’s challenge to a Texas abortion ban.
But even some of the justices who refused to halt enforcement expressed deep misgivings about the way SB 8 makes it all but impossible for doctors, clinic workers and other potential defendants to challenge its constitutionality.
Justice Amy Coney Barrett, one of three Trump-appointed justices and among the most conservative, jumped in quickly with questions sympathetic to the abortion clinics, noting that the law explicitly limits claims by defendants that SB 8 imposes an “undue burden” — a key test since 1992.
“The full constitutional defense cannot be asserted” by a defendant, she said.
That’s precisely the argument from the Center for Reproductive Rights, which represents abortion providers challenging the law.
“Texas delegated enforcement to literally any person anywhere — except its own state officials. The only conceivable reason for doing so was to evade federal court review,” argued Marc Hearron, the CRP’s lawyer. If allowed to stand it “would provide a roadmap for other states to abrogate any decision of this court with which they disagree.”
But justices also expressed concern about the proposed remedy — barring state judges from hearing SB 8 lawsuits, and state court clerks from accepting the filings.
“You might appreciate that the idea of suing the judges would garner our attention,” Chief Justice John Roberts said.
The structure of SB 8 leaves little choice, Hearron said, because the state “is trying to nullify the exercise of a constitutional right … by delegating enforcement to the public, and taking away the normal ordinary executive officials and then also creating special court rules.”
Justice Brett Kavanaugh pressed a related concern — that the clinics’ position would open the floodgates to federal orders barring certain types of lawsuits in state courts.
“This seems like a novel case, and that’s because it’s a novel law,” argued Prelogar, confirmed only last Thursday as the new solicitor general. “No state has ever sought to challenge the supremacy of federal law and keep the courts out of the equation in quite the same way.”
Monday’s back-to-back hearings involved related challenges.
The Justice Department sued Texas, insisting the federal government has the right to protect constitutional rights. Abortion providers sought to enjoin state courts and clerks, to preclude SB 8 lawsuits.
Roe may be teetering
Advocates on both sides took the court’s willingness to let SB 8 take effect as an omen ahead of Dec. 1 arguments on a 15-week ban adopted by Mississippi — a case that does put Roe directly in the crosshairs.
The question is effectively the same in both cases: whether the Legislature can craft a law impervious to federal court review, even though the ban obviously violates Roe and the 1992 ruling in Casey vs. Planned Parenthood that allowed restrictions unless they pose an “undue burden.”
Although the court did let SB 8 take effect, it also moved with rare speed on the appeal, setting oral arguments quicker than in any case since the 2000 presidential election fight, Bush vs. Gore.
Texas and other states have tried for decades to chip away at abortion access under those rulings.
Hardly any lawsuits have been filed under SB 8. The threat alone has throttled abortion providers, as intended.
“Even one day of abortion services could result in years of litigation and millions of dollars in legal fees and costs, not to mention the threat of liability that starts at $10,000 per abortion, per defendant,” the abortion providers argued in a brief filed last week.
SB 8 prohibits doctors and others from defending themselves on the basis that they believe the law is unconstitutional. Even if they win, plaintiffs never have to pay their legal fees — and the judgment isn’t binding on other lawsuits involving the same allegedly illegal abortion. A defendant can’t seek federal court protection before they violate the ban and lose a lawsuit.
Several conservative justices seemed dubious about the law.
The chief justice pressed Texas’ lawyer on the expansive deterrent built into SB 8.
What if the bounty were $1 million? Roberts asked. “Nobody is going to risk violating the statute because they’d be subject to a suit for a million dollars. That takes a lot of fortitude to undertake the prohibited conduct in that case. And under this system, it is only by undertaking the prohibited conduct that you can get into federal court.”
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“Undoubtedly would increase the chill,” Stone conceded, arguing his first case at the Supreme Court, but sovereign immunity would still shield Texas from federal court review. “No number would suddenly cause the federal courts to become more open” to defendants trying to challenge the constitutionality of SB 8.
Texas argues that SB 8 lawsuits are no different from lawsuits involving deceptive trade practices or employment discrimination, and that it has every right to create a private cause of action to be litigated in its courts. The Biden administration and abortion clinics don’t get standing to block the law just because they don’t like it, the state argued, because “Texas government officials are prohibited by law from enforcing SB 8 either directly or indirectly.”
Justice Clarence Thomas pressed Stone on whether SB 8 plaintiffs are effectively acting as private attorneys general — that is, as agents of the state.
“Every tort action undoubtedly advances a state preferred policy,” Stone responded.
But normally in a tort action, Thomas pressed, plaintiffs must show they suffered an injury of some sort. SB 8 plaintiffs simply don’t want anyone to get an abortion. Stone likened it to an “outrage” tort in which someone feels extreme moral or psychological harm at someone else’s action.
“Forgive me, but I don’t recall an `outrage’ injury,” Thomas said.
Kavanaugh noted that HB 1280 — a so-called “trigger law” signed in June by Gov. Greg Abbot to ban all abortions if Roe falls — has an “ordinary enforcement mechanism” rather than lawsuits. The contrast raised eyebrows. “It looks like this law was designed to avoid the review” available under HB 1280, he said.
Stone agreed. The “obvious purpose” of SB 8 is to channel challenges into state courts, he said, but that doesn’t invite federal standing or necessarily violate the Constitution.
Several other conservatives voiced doubts about requests for the Supreme Court to step in preemptively and block the new law.
Justice Neil Gorsuch pointed out that plenty of state laws chill the exercise of constitutional rights, and typically, people who dislike such laws have to wait until they’re enforced before asking a court to strike them down.
“Gun control laws also have a chilling effect. Laws restricting the exercise of religion can have a chilling effect,” he said.
He pressed for even a single case in which the federal government had obtained a blanket injunction against state judges and anyone else who might handle or file a particular type of lawsuit.
The federal government’s goal, Preloger said, is to “pierce the fiction here that the state has tried to create by delegating SB 8 enforcement authority to the world at large. … No state has done what the state of Texas has done here.”
Crafted to evade review
Jonathan Mitchell, a former Texas solicitor general, crafted the law and represents three individuals who want to protect their right to file lawsuits under it.
“The state is not directing the activity of these private individuals. The state has passed a law that gives them the option to sue and then it has washed its hands of the matter,” he argued Monday, tag teaming briefly with Stone.
In a brief filed last week, Mitchell argued that it’s the court’s own erosion of Roethat makes the law so effective. SB 8 “has been effective in deterring post-heartbeat abortions primarily because the future of Roe v. Wade is uncertain. Even critics of SB 8 recognize this fact.”
The Justice Department called Texas’ efforts to avoid federal review “breathtaking.”
“If Texas can nullify Roe and Casey in this manner, then other states could do the same with other constitutional rights or other decisions of this court that they disfavor. Federal courts are not powerless to craft relief to stop that intolerable threat to our constitutional hierarchy,” argued Prelogar.
Abortion providers conjure a dystopian future if the court lets SB 8 stand, with states able to brazenly violate any well-established constitutional right by setting up a “rigged” system. The argument clearly resonated with the three liberal justices.
Justice Elena Kagan sought to poke a hole in Stone’s position by noting that if Texas had enacted an ordinary heartbeat ban, defendants could file a challenge against the state attorney general even though prosecutions are conducted by locally elected district attorneys.
The separation between state officials and the enforcers under SB 8 — private litigants — “shouldn’t matter for the same reason,” she said.
Justice Sonia Sotomayor raised the specter of states creating private enforcement schemes that violate other precedents, including some cherished by conservatives.
Suppose lawsuits could be filed against gun owners, or to force someone to officiate at a same-sex wedding, or to enforce a ban on private consensual sex or the use of contraceptives?
“This is not limited to abortion,” she said.
Justice Stephen Breyer boxed with Stone over the extent of Texas’ claim that states can avoid federal court oversight even when they violate constitutional rights. What if Arkansas Gov. Orval Faubus, a fierce segregationist, had signed a law in 1957 that allowed lawsuits against anyone who brought a black child to a white school?
Stone called that a transparent violation of the 14th Amendment that no state court would allow. But state courts did just that, Breyer pointed out, needling the Texas advocate: “You cannot think of anything.”
Amy Hagstrom Miller, president and CEO at Whole Woman’s Health, the lead plaintiff in the case, which operates four clinics in Texas, said she was encouraged by the questions from conservative justices.
“Texans have been forced to remain pregnant against their will,” she said. “Texas is the first to enact a ban this extreme, but they won’t be the last.”
