A Texas law banning abortions after six weeks of pregnancy that authorizes anyone to sue when an illegal abortion is performed violates decades-old Supreme Court precedents, the Biden administration told the high court Nov. 1.
Texas designed the statute “to thwart judicial review by offering bounties to the general public to carry out the state’s enforcement function,” U.S. Solicitor General Elizabeth Prelogar told the justices.
“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.”
The Supreme Court actually heard two related cases the same day. The first was Whole Woman’s Health v. Jackson, court file 21-463, a challenge to the Texas statute. Immediately after, it heard United States v. Texas, court file 21-588, in which the federal government seeks to prevent the state, state court judges and clerks, other state officials, and private parties from enforcing the statute.
The Texas Heartbeat Act, also known as S.B. 8, crowdsources enforcement, as opposed to authorizing government officials to prosecute violations. The law, which took effect Sept. 1, permits any person to sue someone who performs or induces an abortion, or aids and abets an abortion, as soon as “cardiac activity” can be detected in a fetus, which is generally possible starting at about the sixth week of pregnancy. Private citizens may initiate civil suits seeking a minimum of $10,000 per abortion, money that some describe as a “bounty.”
Abortion provider Whole Woman’s Health, which runs clinics in Texas and 5 other states, sued to overturn the law, arguing that it runs afoul of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), in which the Supreme Court created a constitutional right to obtain an abortion before the fetus is viable at about the 24-week-mark of pregnancy. The chain of clinics also challenged the enforcement mechanism that relies on individuals filing lawsuits.
As the Supreme Court hearing was underway, Whole Woman’s Health tweeted: “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.”
After voting 5-4 on Sept.1 to deny a request to halt enforcement of the law, on Oct. 22 the Supreme Court 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. On Sept. 2, President Joe Biden blasted 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.”
The Supreme Court agreed to hear the challenge to the law, even while an appeal was pending in a lower court, after what is called a petition for certiorari before judgment was filed. Before that, on Oct. 14, the U.S. Court of Appeals for the 5th Circuit stayed a lower court’s preliminary injunction barring enforcement of the law. The 5th Circuit is not expected to hear the appeal against its ruling until December at the earliest.
During oral arguments Nov. 1, Whole Woman’s Health lawyer Marc Hearron said the Texas legislature created rules “that turn courts into a weapon.”
Hearron said the law chills the exercise of constitutionally protected rights, and Justice Neil Gorsuch implied the attorney’s client was being hasty in trying to block enforcement of the Texas Heartbeat Act.
Gorsuch got Hearron to acknowledge that some other laws such as those about defamation, gun control, and rules about the exercise of religion during the pandemic, also, in the justice’s words, “chill the exercise of constitutionally protected liberties.”
“That’s probably correct,” Hearron said.
Prelogar said the Texas law could lead to chaos nationwide.
“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 said.
The state “designed S.B. 8 to thwart the supremacy of federal law in open defiance of our constitutional structure,” Prelogar said.
“States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the court’s decisions in their borders, and block the judicial review necessary to vindicate federal rights.”
If a state can give its enforcement authority “to the general public backed up with a bounty of $10,000 or $1 million … then no constitutional right is safe.”
Chief Justice John 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, you say. We have the authority to sue states under 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 shot back: “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?”
Texas Solicitor General Judd E. Stone II told the justices that the federal government lacks legal grounds to sue Texas in federal court.
“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,” Stone said.
“The United States cannot seriously assert that the Constitution requires pre-enforcement federal judicial review. It opposes that result in virtually every other case,” he said.
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.”
“I mean, 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.”
Stone pushed back, saying Texas had not “nullified anything” by enacting the statute, which he said is consistent with federal law. Those unhappy with the law are still free to challenge its constitutionality in state courts, he added.