Supreme Court hears oral arguments on Texas abortion law

Ordinarily, sovereign immunity prevents individuals from suing government officials and officers. But what happens when those government officials are acting unconstitutionally, enforcing an unconstitutional law?

In 1908, the Supreme Court established an exception to this sovereign immunity principle in a case called Ex Parte Young, allowing individuals to sue and enjoin government officials from acting when they enforce unconstitutional laws.

But individual plaintiffs cannot simply sue the state or any government official they’d like to. Instead, they must show a nexus between the government official being sued, and the purported unlawful act enforcing the unconstitutional law. 

CNN legal analyst and University of Texas Law professor Steve Vladeck says it matters here for two reasons:

Solicitor General Elizabeth Prelogar started with a clear rundown of the Justice Department’s arguments, that Texas designed a law to violate constitutional rights in a way that can’t be challenged.

“Texas is responsible for the constitutional violation here. It enacted a law that clearly violates this Court’s precedents,” she added. “It designed that law to thwart judicial review by offering bounties to the general public to carry out the state’s enforcement function. And it structured those enforcement proceedings to be so burdensome and to threaten such significant liability, that they chill the exercise of the constitutional right altogether.”

"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," she continued.

Justice Amy Coney Barrett pushed back on a line of questions from fellow conservative Justices Samuel Alito and Neil Gorsuch, in which they leaned into the idea that state courts can take the lead on litigating the ban.

Alito asked Texas about the cases already pending in state court against the ban, and the quickness with which they’ll move forward.

Gorsuch, meanwhile, asked about the ability of providers to get preemptive orders blocking enforcement of the ban against them.

Barrett took aim specifically at Gorsuch’s question, and noted in a question to the Texas’ lawyer that providers can’t sue the state attorney general in court to preemptively block the ban.  

“You cannot get global relief” in state court, Barrett said, the way one can obtain pre-enforcement orders in federal court against state officials. The question reflects Barrett may be inclined to vote to block the law.

Newly confirmed Solicitor General Elizabeth Prelogar is now arguing on behalf of the Biden administration.

She is expected to tell the justices that the federal government can step in to sue Texas because the law at issue is “clearly” unconstitutional and the federal government needs to protect the rights of its citizens, especially when the law was written in such a way to block others from bringing a lawsuit.

She will also point out that the law is blocking federal actors on the ground in Texas from carrying out their responsibilities consistent with the Constitution.

Justice Brett Kavanaugh questioned Texas on argument made by foes of the ban that the law’s enforcement mechanism could be “easily replicated” in other states, where the legislatures oppose other constitutionally protected rights, like gun rights or freedom of religion. 

Kavanaugh grilled Texas on a scenario where a gun purchase could invite $1 million damages, whether that kind of state private cause of action law would be exempt from preemptive federal court review. 

The line of questioning came after Kavanaugh earlier in the hearing asked another pointed question for Texas that suggested he had some sympathy towards the providers’ arguments in the case. 

He asked about the case law that allows opponents to seek federal court orders preemptively blocking state officials from enforcing laws, and how Texas had seemingly gotten around it by tasking private citizens with the ban’s enforcement.

He referenced Justice Elena Kagan and her assertion that, in tasking private citizens with the ban’s enforcement, Texas had found a loophole in the case law. Kavanaugh asked Texas whether the Supreme Court should seek to close that loophole.

Justice Neil Gorsuch pushed the abortion providers’ lawyer Marc Hearron on whether the chilling effect that the Texas ban has on providers is that unique. 

Hearron conceded that some of those laws may be only challenged after the fact. The providers argue that the chilling effect of the law is extraordinary enough that the federal judiciary should take extraordinary steps to preemptively stop its enforcement.

Justice Amy Coney Barrett asked the lawyer representing abortion providers a line of friendly questions, suggesting she may have some sympathy for their arguments in the Texas six-week abortion ban case. 

Barrett is a crucial vote in the case. She declined to vote in favor of blocking the law at earlier stages in the proceedings.  

On Monday, she asked about what kind of defense providers and others who facilitate abortions after six weeks can put in court if they are sued under Texas law. Her questions hit on a key issue in the case. The law’s foes argue that the extraordinary nature of the Texas law, and how it tilts the state litigative system against abortion providers, warrants extraordinary action by the federal judiciary. 

Texas and its allies are arguing that the constitutional questions that the ban raises can be resolved in the state court litigation brought under the law 

Barrett asked whether the providers, when facing state court litigation under the ban, can mount a full constitutional defense of their actions, under the law’s restrictions of what they can argue in the state court litigation. 

In a follow up, she suggested that the way that the enforcement mechanism was designed – in how it precludes what defendants can argue about the undue burden being placed on them – seemed to be at odds with the court’s previous rulings on abortion rights. 

Tellingly, Justice Samuel Alito — who has asked tough questions of the providers — jumped in to the line of questioning to lob another pointed question at the providers.

Debate turned on whether the court can block state court clerks from putting lawsuits against abortion providers on the docket.

Marc A. Hearron, a lawyer for the Center for Reproductive Rights representing a coalition of Texas abortion providers, said an injunction against court clerks would help relieve the “chilling effect” S.B. 8 has had against women and abortion providers.

“The state has made the clerks an essential role in the machinery it has created,” Hearron said.

The Supreme Court justices are hearing oral arguments related to a Texas law that bars abortion at around six weeks of pregnancy.

Outside of the court, supporters and opponents of the law are gathering as the oral arguments unfold.