There was skepticism on both sides as the nine justices of the Supreme Court heard the arguments of opposing counsel this week in a challenge to Texas’s unique new fetal-heartbeat abortion law that relies on citizen participation for enforcement.
The high-profile case moved at lightning speed, by Supreme Court standards, finding its way to oral arguments at the high court exactly two months after the controversial law took effect in the Lone Star State.
Observers see the case as a way to test the cohesiveness of the court’s 6–3 conservative supermajority that’s been in place since 2020 when Justice Amy Coney Barrett replaced the late liberal icon Justice Ruth Bader Ginsburg. Some conservatives have been critical of the court’s three newest members, judicial conservatives appointed by President Donald Trump, saying they haven’t done enough to undo the court’s liberalism or to protect religious freedoms from government encroachment during the pandemic.
A September Gallup poll suggested a growing public unease with the court. It found that Americans’ opinions of the Supreme Court have fallen to 40 percent approval, the lowest since 2000, down from 49 percent in July. The poll was taken not long after the court refused to block the Texas law, allowed college vaccine mandates to go forward, and turned down a Biden administration effort to keep alive an expiring federal moratorium on evictions during the pandemic.
Instead of authorizing government officials to prosecute violations, the Texas Heartbeat Act, also known as S.B. 8, crowdsources enforcement. The law, which took effect on Sept. 1, permits any person to sue someone who performs or induces an abortion, or aids and abets an abortion, after “cardiac activity” can be detected in the fetus, generally possible starting the sixth week of pregnancy. This means that someone who helps a woman obtain an abortion by driving her to a clinic could, in theory, be sued under the statute. Private citizens may initiate civil suits seeking a minimum of $10,000 per abortion, money that some, including Chief Justice John Roberts at the hearing, have described as a “bounty.”
Compared to much of the world, the United States has permissive standards for abortion.
Although most Americans reportedly support abortion restrictions, the United States is only one of seven countries that allow elective late-term abortions after 20 weeks, or five months of gestation, according to the conservative Heritage Foundation publication, The Daily Signal. “America is an outlier when it comes to earlier restrictions, too. A recent study found that ‘47 out of 50 European nations limit elective abortion prior to 15 weeks.’”
Despite public uproar on the pro-abortion left, including demands for boycotts of Texas and the immediate repeal of the law, the court voted 5–4 on Sept. 1 to deny a request to halt its enforcement. The next day, President Joe Biden excoriated the court, saying its refusal to block the law was “an unprecedented assault on a woman’s constitutional rights under Roe v. Wade, which has been the law of the land for almost 50 years.”
Political pressure continued to mount, and on Oct. 22, the Supreme Court abruptly voted to hear the case on an expedited basis and scheduled the Nov. 1 hearing. Between Sept. 1 and Oct. 22, the legal situation in Texas received saturation media coverage as activists and politicians denounced the high court and argued that Texas women have been harmed and inconvenienced by the law.
Abortion provider Whole Woman’s Health, one of the litigating parties, wrote on Twitter on the day of the hearing: “For 61 days, patients have been forced to choose between traveling on average over 200 miles one way for care, or stay pregnant against their will. These are real people’s lives we are talking about.”
Whole Woman’s Health, which runs clinics in Texas and five other states, had sued to overturn the new law, arguing that it violates Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), in which the Supreme Court discovered a constitutionally protected right to obtain an abortion before the fetus is viable, at about the 24-week mark. The chain of clinics also challenged the novel enforcement mechanism that relies on individuals filing lawsuits.
At the Nov. 1 Supreme Court hearing, Chief Justice John Roberts had a sharp exchange with U.S. Solicitor General Elizabeth Prelogar, who argued that allowing the Texas law to stand would lead to chaos.
Roberts said Prelogar had claimed the government’s case was “very narrow,” yet “the authority you assert to respond to it is as broad as can be. It’s equity … which is a limitless ill-defined authority.”
“What is the limiting principle?”
Prelogar replied that “the equitable remedy that we’re seeking here is not limitless. It is the traditional remedy of enjoining implementation of an unconstitutional law.”
Roberts responded: “Well, it’s hardly traditional to get injunctions against judges, injunctions against clerks, injunctions against everybody, right? That’s part of the relief you seek, isn’t it? People—anybody can bring one of these suits—so you’re seeking an injunction against the world, right?”
Justice Elena Kagan was skeptical of the arguments of Texas Solicitor General Judd E. Stone, who said the federal government lacks legal grounds to sue Texas in federal court.
Stone said, “The Department of Justice’s suit offends the separation of powers by usurping for the executive branch the role Congress plays in determining what cases may be heard and what remedies may be provided in the federal courts.”
Justice Elena Kagan told Stone his line of thinking “would be inviting” all 50 states “to try to nullify the law that this court has laid down.”
“That was something that until this law came along no state dreamed of doing. And, essentially … there’s nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don’t like, go ahead,” she said.
Justice Neil Gorsuch questioned why abortion clinics were in such a rush to shut down the new Texas law, which Whole Woman’s Health lawyer Marc Hearron said discourages people from insisting on their constitutional rights.
On Dec. 1, the court will hear Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s Gestational Age Act, which allows abortions after 15 weeks’ gestational age only in medical emergencies or for severe fetal abnormality. Lower courts struck down the statute.