The U.S. Supreme Court heard two challenges on Monday to the Texas law that bans most abortions past six weeks and enlists private individuals as its enforcers. Two Trump-appointed justices who had initially allowed the law to take effect now took issue with this form of enforcement, suggesting the court may rule to at least temporarily halt the Texas law.
Monday’s oral arguments in Whole Woman’s Health v. Jackson and USA v. Texas did not take up the facts of the case, but instead centered on procedural issues to determine if the two lawsuits filed by abortion providers and the U.S. Justice Department can continue. If Supreme Court justices allow the cases to proceed, they will return to the U.S. 5th Circuit Court of Appeals. The Supreme Court could also decide to pause enforcement of the legislation, Senate Bill 8, while the two cases make their way through the courts.
The plaintiffs’ attorneys urged justices to enjoin the law, while defendants’ attorneys argued that they had no right to sue in the first place.
The justices’ questions became highly technical at times, wading into questions about the appropriate avenue for judicial remedies, with the issue of abortion itself at times lost in the procedural thicket.
In the two months since the Supreme Court allowed SB 8 to go into effect, the number of abortions in Texas has dropped by 50%, according to University of Texas at Austin researchers, as people desperate to terminate their pregnancies have traveled out of state for the procedure.
SB 8 went into effect on Sept. 1 and imposed the nation’s strictest time limit on abortions; it includes no exceptions for pregnancies resulting from rape or incest. While people who have abortions past the six-week window can’t be punished under the law, anyone who “aids or abets” them to help make that abortion possible — whether that’s the doctor performing the procedure, an abortion fund that helps cover the cost or someone who’s driven them to the appointment — can face an unlimited number of lawsuits for a minimum of $10,000 each.
Those lawsuits can be filed by any private individual from anywhere in the country.
The law at issue
When the Trump administration appointed three new justices to create a 6-3 conservative majority on the Supreme Court, abortion foes in states across the country drafted a slew of so-called “heartbeat” laws, among them SB 8, which outlaw abortions as soon as cardiac activity can be detected in an embryo.
Under current court precedent, the unconstitutionality of SB 8 and other “heartbeat” laws is a matter of simple math. The 1992 Supreme Court case Planned Parenthood v. Casey established that women have a constitutional right to “pre-viability” abortions, meaning abortions that occur before 24-28 weeks of gestation — the time at which a fetus can live naturally outside the womb. SB 8 effectively bans abortions past six weeks — well before many people know they are pregnant, and months before the 24-week viability threshold.
But where other states’ laws charged its officials with enforcing them, SB 8 expressly forbade Texas state officials from doing so, instead delegating enforcement authority to members of the public. It is this enforcement mechanism that has allowed SB 8 to so far evade legal challenges, where other heartbeat laws have been enjoined or struck down in lower courts.
In most instances, when a law violates constitutional rights, plaintiffs can attempt to block that law by suing the state official charged with enforcing it.
On Monday, arguments in both cases often returned to the question: If state officials aren’t enforcing SB 8, who can be sued to challenge its constitutionality? Can Texas “insulate” SB 8 from federal court review by giving the public the power to enforce it?
Whole Woman’s Health v. Jackson was filed by many of the groups that could be vulnerable to SB 8 lawsuits under the law’s aiding and abetting provisions: abortion clinics, abortion funds and doctors, along with clergy members who provide counsel to people weighing whether to end their pregnancies. Among this group of plaintiffs is Planned Parenthood of Greater Texas, the umbrella organization for El Paso Planned Parenthood.
El Paso has had no abortion provider since the start of the pandemic, in March 2020. That month, Hill Top Women’s Reproductive Center closed and physicians who had once flown in to offer abortions at El Paso’s Planned Parenthood stopped their bi-monthly flights due to concerns over COVID safety.
The arguments over SB 8
Marc Hearron, an attorney for the Center for Reproductive Rights, argued for the plaintiffs that SB 8 had a “chilling” effect on people seeking to exercise their constitutional right to an abortion. By barring state officials from enforcement, SB 8 had effectively blocked any challengers to the law, he said.
“The Texas Legislature not only deliberately prohibited the exercise of a constitutional right recognized by this court, it did everything it could to evade effective judicial protection of that right,” he said in his opening remarks.
Hearron asked justices to block county court clerks from scheduling SB 8 lawsuits in their court’s dockets and to prohibit state court judges from presiding over SB 8 cases, arguing that these actions constituted a form of indirect enforcement of the law.
Justice Brett Kavanaugh asked the defendents’ attorney, Texas Solicitor General Judd Stone III, about the possibility that additional states could draft laws targeting other constitutional rights.
“(SB 8) will easily become a model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets,” Kavanaugh read from an amicus brief submitted by the Firearms Policy Coalition, a gun rights group, in support of the abortion providers’ lawsuit.
The Department of Justice, represented by newly appointed U.S. Solicitor General Elizabeth Prelogar, argued that SB 8’s attempt to thwart judicial review of constitutional rights violations posed an existential threat to the supremacy of the federal government. If the courts allowed SB 8 to stand “then no constitutional right is safe,” she said. “No constitutional decision from this court is safe.”
Stone, the Texas solicitor general, had largely the same response to both cases: Because the law expressly forbid state officials from enforcing it, neither the clerks and judges named in the abortion providers’ case nor the state of Texas — named in the DOJ’s case — could be sued as defendants in federal courts.
Both Stone and John Mitchell, one of the chief architects of SB 8, said that it should be up to Congress to fix the loophole laid bare by SB 8.
Justice Elena Kagan said that individuals shouldn’t have to rely on Congress to protect constitutional rights. “Isn’t the whole point of a right that it doesn’t really matter what Congress thinks or what the majority of the American public thinks as to that right?” she said.
The justices agreed to hear both cases before the 5th Circuit Court of Appeals has fully weighed in on the cases. The high court has not taken up a case at such a rapid clip since Bush v. Gore, the case that determined the 2000 election.
Cover photo: The current justices of the Supreme Court. Seated from left: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor. Standing from left: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch and Amy Coney Barrett. (Photograph by Fred Schilling, Collection of the Supreme Court of the United States)