Supreme Court hears oral arguments on Texas abortion law

The oral arguments on the Texas law that bars abortion at around six weeks of pregnancy have wrapped. Supreme Court justices heard two sets of arguments for nearly three hours.

The justices limited their review to the law’s novel structure, which bars state officials from enforcing it. Instead, private citizens — from anywhere in the country — can bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law.

Critics say the law was crafted to shield it from challenges in federal courts and stymie attempts by abortion providers and the government to sue the state and block implementation.

What the justices said: Two key conservative justices seemed open to arguments from abortion providers that they should be able to challenge the ban in federal court, but in a separate challenge, brought by the Department of Justice, several conservative justices did express some reservations about the breadth of the government’s arguments, with Chief Justice John Roberts calling the Biden administration’s argument “as broad as can be.”

Some justices, led by Justice Elena Kagan, suggested that the court could allow the suit brought by abortion providers to go forward and refrain from having to take action on the more complicated Justice Department case.

Reading tea leaves at the oral arguments, however, is a complicated endeavor.

Oral arguments were two months to the day that a 5-4 court allowed the law to go into effect, halting most abortions in the country’s second largest state, and flooding clinics in nearby states with patients from Texas.

Amid a nationwide firestorm, the Supreme Court agreed to fast-track two appeals brought by a coalition of abortion providers and the Biden administration, signaling that the justices understand the case to be one of the most urgent the court has considered under Roberts.

What may come next for the law is still up in the air, there’s no deadline or anything forcing the justices to act. Their decision to fast-track the oral arguments may however be an indication that they may act sooner rather than later.

Each side’s arguments: The justices heard from Marc A. Hearron, a lawyer for the Center for Reproductive Rights representing a coalition of Texas abortion providers, Texas Solicitor General Judd E. Stone and newly confirmed Solicitor General Elizabeth Prelogar who argued on behalf of the Department of Justice.

Lawyers fighting the law called it blatantly unconstitutional and designed with the express intent to make challenges in federal court nearly impossible, therefore nullifying a woman’s constitutional right to an abortion.

Hearron argued that the providers should be able to proceed with a lawsuit targeting not only Texas officials but also state court judges, clerks and any private parties who are responsible for implementing the law. The crux of the argument is that the state legislature cannot craft a law that’s insulated from review in federal courts, particularly when the state has delegated enforcement to the general public.

In response to both disputes, Texas says neither case can proceed because the state is not the proper defendant since SB 8 bars state officials from enforcing the law.

Stone emphasized that neither case “presents a case or controversy” and that both challenges should be dismissed. Targeting the Biden administration’s argument that federal law is supreme, Stone said the Constitution does not allow a “grant of federal power to sue whenever the United States wants.”

What the law does: S.B. 8, the law in question, bars abortions after the detection of a fetal heartbeat at around six weeks — often before a woman knows she is pregnant — and is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

After the justices allowed the law to go into effect on Sept. 1, with Roberts joining the liberal justices in dissent, women in the state scrambled across state borders and lower-income women were left with few options. The law has no exception for rape or incest.

Read more about today’s oral arguments here.

Supreme Court Associate Justice Sonia Sotomayor arrives at the US Capitol on January 20 in Washington, DC. 

Justice Sonia Sotomayor peppered Jonathan Mitchell – a lawyer and architect of the Texas abortion ban who is now defending it on behalf of intervenors in the Department of Justice case – with questions about his arguments for why a federal court couldn’t block private citizens from enforcing Texas law. 

“The state has passed a law that gives them the option to sue, and then it has washed its hands of the matter, so there is no joint participation in their decision,” Mitchell said, before Sotomayor cut him off. 

She asked Mitchell whether his arguments would apply to a prosecutor who had been tasked by the state to enforce a discriminatory law, or to someone who is implementing a primary election that excludes people on the basis of race. 

“We have recognized that washing your hands doesn’t insulate a state, or insulate people acting on behalf of the state,” Sotomayor said. Mitchell tried to argue that those scenarios are distinguishable to what Texas has done with its ban, but Sotomayor jumped back in. 

“Are suggesting that states can hire agents to do unconstitutional acts,” Sotomayor asked, to which Mitchell said no. “So how can states designate private individual to act under its laws to violate a person’s constitutional rights?” she asked.

Justices Sonia Sotomayor and Elena Kagan ripped the Texas ban for how it would create a model for states to attack other constitutionally protected rights. 

Sotomayor grilled Texas Solicitor General Judd Stone on Texas’ argument that Congress could step in and write legislation that would prevent states from passing such laws. “Can I give you examples where Congress hasn’t?” Sotomayor said, ticking off decisions the Supreme Court has made on gun rights, same-sex marriage, birth control, sodomy, and other contentious issues. 

Kagan picked up the torch, telling Stone that “guns, same sex marriage, religious right, whatever you don’t like” can now be targeted with a law like the Texas ban.

Justice Brett Kavanaugh nodded to an argument made by the ban’s supporters in the case that there is not danger of the ban’s enforcement mechanism being pointed at other constitutionally-protected rights because those rights are more certain than the right to an abortion.

Kavanaugh did not mentioned it explicitly, but the court is hearing another abortion case next month — a challenge to Mississippi’s 15-week ban — where the court’s precedent in Roe v. Wade will be explicitly in play.

Chief Justice John Roberts on Jan. 20, 2021 in Washington, DC. 

Following up on Justices Elena Kagan’s and Samuel Alito’s questions about whether a ruling in the Department of Justice’s favor could be appropriately limited, Chief Justice John Roberts said he had his “concerns” about how narrowly this case could be treated.

“I share some of the concerns that have been voiced by my colleagues,” Roberts said, “You say this case is very narrow, it’s rare, it’s particularly problematic,” he said.

But the authority the US was claiming in bringing its lawsuit was a “limitless, ill-defined authority,” Roberts said.

He asked the solicitor general to explain the “limiting principle” and grilled her specifically on the idea that the court could issue against state court clerks or anyone who could bring private litigation under the law.

Supreme Court associate justices Samuel Alito, left, and Elana Kagan testify about the court's budget during a hearing of the House Appropriations Committee's Financial Services and General Government Subcommittee, in Washinton, D.C. on March 07, 2019.

Justices Elena Kagan and Samuel Alito asked back-to-back questions of Solicitor General Elizabeth Prelogar about what limits the Supreme Court could put on its ruling if it was to rule against Texas in the case.

The questions appeared aimed not just at the Department of Justice, but at the potential swing votes on the court, with Kagan seemingly seeking to assure the justices that a ruling in the Department of Justice’s favor could come with limits and Alito asserting that what the US was asking for was “inconsistent” with the rule of law.

Alito was next up, and he zeroed in on how – in his characterization – the US was arguing the Supreme Court should issue a rule that would apply just to this case.

That approach is “inconsistent” with rule of law, Alito said. He also took aim at the idea that state court judges could be blocked by the federal judiciary from presiding over certain cases.

“When has that been done and how can that be justified?” Alito said.

He added he believed the DOJ was arguing that a “federal judge can enjoin state judges because they’re, they’re lower creatures.”

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.

Associate Justice Amy Coney Barrett at the Supreme Court in Washington, DC on April 23, 2021.

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.

Anti-abortion protesters gather outside the U.S. Supreme Court on Monday.

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.

Abortion supporters outside of the U.S. Supreme Court on Monday.

Elizabeth Prelogar will argue the case for the Justice Department — in her first full day on the job as solicitor general. 

The Senate confirmed her on Thursday, and she was sworn in on Friday. Prelogar, an alum the special counsel Robert Mueller’s team who spent several years at the department before that investigation, was named as President Biden’s choice for the post in August, just weeks before the Supreme Court’s new term was to start.

Biden’s slowness in announcing her nomination raised eyebrows in the legal community, as she had been serving as acting solicitor general since the beginning of his administration.

The director of public affairs for the Justice Department shared an image from the swearing in ceremony Friday:

A coalition of Texas abortion providers is going first — represented by Marc A. Hearron, a lawyer for the Center for Reproductive Rights.

The crux of his argument is that the providers have the legal right to sue Texas officials, state judges, clerks and private individuals.

They say under normal circumstances a state would be immune from such lawsuits, but this case is different because the law was designed to avoid judicial review.

A sharply divided Supreme Court is gathering now to once again consider a Texas law that bars abortion at around six weeks of pregnancy, reigniting a debate concerning the most restrictive law in the country.

Oral arguments come two months to the day after a 5-4 court allowed the law to go into effect, halting most abortions in the country’s second largest state, and flooding clinics in nearby states with patients from Texas.

Amidst a nationwide firestorm, the Supreme Court agreed to fast-track two appeals brought by a coalition of abortion providers and the Biden administration, signaling that the justices understand the case to be one of the most urgent the court has considered under Chief Justice John Roberts.

What to expect today: Lawyers fighting the law will argue that it is blatantly unconstitutional and was designed with the express intent to make challenges in federal court nearly impossible, therefore nullifying a woman’s constitutional right to an abortion.

SB 8, the law in question, bars abortions after the detection of a fetal heartbeat at around six weeks — often before a woman knows she is pregnant — and is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

After the justices allowed the law to go into effect on Sept. 1, with Roberts joining the liberal justices in dissent, women in the state scrambled across state borders and lower-income women were left with few options. The law has no exception for rape or incest.

The Supreme Court on Monday wiped away a decision that upheld a New York regulation that mandates that employer health insurance policies provide coverage for abortion services.

The justices instructed the lower court to take another look at the case in light of a decision the justices rendered last spring.

In that case, the court ruled that Philadelphia violated the First Amendment when it froze the contract of a Catholic foster care agency that refused to work with same-sex couples as potential foster parents because the agency believes that marriage should be between a man and a woman. 

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have agreed to hear the case brought by religious groups.

The news came as the justices prepare to hear oral arguments on a Texas law that bars abortion at around six weeks of pregnancy.

Since the challenge to a Texas abortion ban first reached the Supreme Court two months ago, the justices have conferred only in private over the law that flouts nearly a half century of abortion-rights rulings.

On Monday the internal debate goes public, as the nine hold oral arguments and air concerns about the ban’s constitutionality or, alternatively, why they believe it is sound. Twice, the majority has rejected pleas to suspend the abortion ban.

In this round, the justices are not directly revisiting the constitutional right to abortion, established in 1973, but rather addressing the authority of judges to vindicate rights.

The paired lawsuits, brought by Texas abortion clinics and the US Department of Justice, come to the high court at a time when it has been flexing its new conservative muscle, with three appointees of former President Trump.

The court has shown a new willingness to delve into controversies over abortion and guns and, as it demonstrated Friday, take up red-state-versus-blue-state cases on climate change and immigration, too.

The remarks of three particular justices on Monday could foreshadow whether a majority will reinforce its support for Texas: