Supreme court appears open to allowing challenge to Texas abortion law

Justices, in oral arguments, seem skeptical of law that gives private citizens right to sue to enforce six-week abortion ban

A majority of the US supreme court appeared skeptical of a controversial Texas law that gives private citizens the right to file civil lawsuits to enforce a six-week abortion ban.

The threat of expensive litigation posed by the ban has had a chilling effect and halted the vast majority of abortions in America’s second-largest state, which is home to more than 6 million women of child-bearing age.

Over nearly three hours of arguments on Monday the nine-member bench heard from three parties: attorneys for Texas, the Biden administration and abortion providers.

The focus of arguments was whether Texas can allow private citizens to enforce an abortion ban in direct contradiction of supreme court precedent in Roe v Wade, the 1973 ruling that provides a constitutional right to abortion up to roughly 24 weeks, and whether the federal government then has the standing to stop the law in court.

Although laws deemed unconstitutional are often described as “struck down” by courts, in fact courts block specific officials from enforcing laws. Texas made it difficult for courts to scrutinize the law by making it difficult to identify who they would block from enforcing it, having, in the words of chief justice John Roberts last month, “delegated enforcement … to the populace at large”.

This design by the Republican-led Texas legislature represented a purposeful effort to evade federal court scrutiny. While abortion was the constitutional right at issue, debate focused on the legality of the structure of Texas’s law, rather than the right to abortion.

The court heard two separate challenges to the Texas law during oral arguments. Three liberal justices had already said they believed the law was unconstitutional. A fourth, the conservative Roberts, had said in the past he would have blocked the law while lower courts considered it. And two more justices, conservatives Amy Coney-Barrett and Brett Kavanaugh, who both joined the bench during the Trump administration, had critical questions for attorneys representing Texas’s case.

In separate suits, the Biden administration and abortion providers asked the court to block the law, claiming it is incompatible with Roe v Wade, caused ongoing and immediate harm to people in Texas seeking abortions, and was designed to evade court scrutiny in a way that threatened other constitutional rights. Attorneys for Texas argued abortion providers’ conflict was with Congress, and blocking courts from accepting lawsuits related to the law, known as SB8, threatened the US system of government.

“It’s very difficult to find that relief, because Texas designed the law specifically to thwart it,” said the US solicitor general, Elizabeth Prelogar. “The clear purpose and actual effect [of the law] has been to chill the right” to abortion.

Marc Hearron, attorney for the Center for Reproductive Rights, representing abortion providers in Texas, argued the court should enjoin Texas court clerks from docketing cases, arguing the threat of litigation was the very point of SB8.

“This is a unique law created because the state has delegated enforcement and taken away the normal executive officials who would enforce, and has weaponized the court system,” Hearron said.

SB8 is structured to favor plaintiffs in several ways. It provides plaintiffs a $10,000 fine for violations, plus attorney’s fees. Defendants, such as abortion providers, are not eligible for any such fees if a case is found to be frivolous. It also allows plaintiffs to sue in any county in Texas, which could force defendants into far-flung courts, and for multiple suits to be brought for the same alleged violation. Furthermore, it allows anyone to sue, not just people who might be somehow hurt by the abortion.

Hearron argued this made anyone involved in providing abortions a “permanent defendant”. Later, he added: “The state has made the clerks an essential role in this machinery they have made.”

Coney Barrett, who appeared skeptical of the enforcement mechanism, asked the Texas solicitor general, Judd E Stone II, whether abortion providers would need to bar citizens from suing one-by-one.

“You cannot get global relief,” said Barrett. “It’s on an individual by individual basis.”

Stone responded that Barrett was effectively correct: each individual citizen would need to be enjoined from enforcing the law. Justices then asked whether the attorney general of Texas could be enjoined, and thus block further lawsuits from being filed, on the basis that citizens were acting as private attorneys general. Stone said no.

“He has none of those sort of mechanisms whatsoever,” said Stone, and added the state had “no authority” to stop private citizens’ suits.

Another conservative on the bench, Brett Kavanaugh, said the Texas law “exploited” a loophole in court precedent concerning when state officials can be barred from enforcing unconstitutional laws. He wondered if the court should “close that loophole”.

Elena Kagan, a liberal justice, sarcastically said the law was written by “some geniuses” to evade the broad legal principle that “states are not to nullify federal constitutional rights”. She argued that if Texas’s argument prevailed, states would be invited to nullify other rights in the same way.

“Guns, same-sex marriage, religious rights, whatever you don’t like: go ahead.”

Only two conservative justices, Samuel Alito and Neil Gorsuch, appeared moved by Texas’s arguments. Gorsuch suggested attorneys for reproductive rights groups were “line drawing” between the Texas law and others laws which constrain constitutional rights.

The hearing came a month before arguably the most important abortion rights case in five decades: Dobbs v Jackson Women’s Health Organization. In that case, the court will consider whether Mississippi can ban nearly all abortion after 15 weeks, roughly nine weeks earlier than Roe v Wade permits.

Both the court’s decision not to block Texas’s law and its acceptance of the Dobbs case are viewed as an ominous signs for the future of legal abortion in the US.

Reuters contributed to this report


Jessica Glenza

The GuardianTramp

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