WASHINGTON — The Supreme Court heard oral arguments Monday for two challenges to the controversial Texas law, enforced by lawsuits from private citizens, that bans abortion after the detection of a fetal heartbeat at about six-weeks gestation. 

During the arguments, which were livestreamed, the justices considered key questions about the types of challenges that could be brought against the law, given its unique enforcement mechanism, and appeared skeptical of one challenge coming from the Department of Justice against the measure but seemed inclined to allow another lawsuit from abortion providers to proceed. 

The discussion was largely a procedural one, although the abortion issue loomed in the background just ahead of oral arguments scheduled for December in Dobbs v. Jackson Women’s Health Organization, a case in which the court will consider whether all pre-viability abortion bans are unconstitutional. 

 

Federal vs. State Law 

Teresa Collett, a professor at the University of St. Thomas School of Law in Minneapolis and director of the school’s Prolife Center, told the Register that the justices “seemed deeply skeptical about” the challenge from the Department of Justice due to concerns that “if the Department of Justice is allowed to pursue a separate lawsuit in this particular case that the whole concept of federalism and limits on federal power disappears because, as one of the justices noted, anytime an administration, wherever they fall in the political spectrum, disagrees with the state law, this would set the precedent that they could go in and claim that they had a right to sue the state over this particular law that they find undesirable.”

Chief Justice John Roberts questioned Elizabeth Prelogar, who was recently confirmed as the Biden administration’s solicitor general, on this point. “What is the limiting principle?” he asked, and “when we get another case down the road, where it’s a different solicitor general who’s making this argument in a different case, what are we going to be able to point to that says ... you can’t say just because there’s a state statute that is enforced by private parties, which is a very common phenomenon, that you then get to sue the states?”

Prelogar responded that “we do not think that a recognition here that the United States can intervene to try to protect the supremacy of federal law would open the floodgates in … situations where a state is simply applying a private right of action through ordinary and fair state court proceedings.”

However, the justices seemed skeptical of her reasoning that the federal government should get involved in this case, but not others where state laws affected constitutional rights. 

Justice Neil Gorsuch asked about other laws that have a “chilling effect” on constitutional rights and why the federal government wouldn’t intervene for “the Second Amendment right or the right to free exercise of religion? We don’t get to pick and choose among our rights. We’re supposed to enforce them all equally. Why does this one get special treatment?” 

Prelogar replied that while gun laws and laws restricting the exercise of religion can have a chilling effect, “they look nothing like this law.”

 

Questions Over Law’s Enforcement Mechanism

Collett believes that, ultimately, “the Department of Justice is unlikely to win their lawsuit” but said the abortion providers “pose a different set of questions.” 

“The court is much more concerned about whether abortion providers will actually have to suffer concrete injuries before they can even get the courts to review and intervene in what seemed to be agreed to be a law that directly violates the federal courts’ interpretation of the U.S. Constitution,” she said.

She explained that the way the Texas law is set up, “the abortion providers are private parties, and the plaintiffs are private parties.” She said that “we allow private parties to violate constitutional rights regularly, sometimes by agreement,” and gave an example of no-compete clauses in employment contracts, adding that “employers tell their employees all the time what they can say and can’t say in their official capacity.” 

There were several noteworthy moments where Trump-appointed Justices Brett Kavanaugh and Amy Coney Barrett — both members of the court’s majority of conservative justices — voiced concerns with the Texas law’s circumventing of federal law. Kavanaugh raised hypotheticals of this approach being “replicated in other states” in the case of other rights, such as a state offering a $1-million bounty for those who sell an AR-15 and claiming it wasn’t using state power because the enforcement lawsuits would only come from private parties.

“There’s a loophole that has been exploited here or used here,” he said. “It could be free-speech rights. It could be free-exercise-of-religion rights. It could be Second Amendment rights.”

Barrett raised questions about a portion of the law limiting the arguments those facing lawsuits can use to defend themselves in state court. “I’m wondering if, in the defensive posture in state court, the constitutional defense can be fully aired,” she said. 

A key issue that was raised was the question of who the defendant would be in challenges brought against the law. Among the precedents discussed was Ex parte Young, a 1908 case in which the Supreme Court allowed lawsuits in federal courts for injunctions to block allegedly unconstitutional state action, and permitting lawsuits against state officials in place of the states. However, state judges were excluded from that precedent, as the case said, “an injunction by a Federal court against a State court would violate the whole scheme of this Government.” Judd Stone II, the Texas solicitor general, argued Monday that the court cannot block state clerks and judges from overseeing civil lawsuits pertaining to the law, as their actions don’t constitute enforcement of the law.

Carolyn McDonnell, staff counsel at Americans United for Life, told the Register that, “generally, federal courts may block state officials from enforcing an unconstitutional law. However, federal courts may not block state officials if they aren’t involved with enforcing the law. What makes this case unique is that S.B. 8 [the Texas Heartbeat Law] explicitly prohibits government officials from enforcing its provisions. It raises several issues: who can be sued and how may courts potentially block the law.”

McDonnell said that, during the oral arguments, the justices “remained focused on these procedural issues. Federal jurisdiction requires adversity [parties with clearly contrary interests]; Justice [Samuel] Alito questioned whether abortion providers can be adverse to judges and clerks when they perform a ‘ministerial function’ like overseeing a civil trial. Many justices were concerned with the Department of Justice’s request seeking to preemptively block virtually anyone in the world from enforcing S.B. 8.”

One significant argument against Supreme Court intervention at this moment is that the law’s opponents would likely have the opportunity to air their arguments there later, after their lawsuits progress through state courts.

The Wall Street Journal Editorial Board weighed in, following the oral arguments, noting, “The proper place to challenge the law is in state court. There are 14 pre-enforcement challenges to the Texas law pending in Travis County state court. Providers note that a ruling in one state court won’t set a legal precedent that can be enforced state-wide. But the Texas High Court will ultimately get to weigh in, and its decision will be reviewable by the U.S. Supreme Court.”

 

Looking Ahead to Dobbs

A Supreme Court decision on the arguments presented Monday, which were taken up on an expedited basis, is expected in the next few weeks, likely ahead of the oral arguments in the Dobbs case next month. Collett said that the oral arguments in this case did “not so much signal the court’s position on the Dobbs case,” as the questions being discussed were procedural, but the arguments do raise “the temperature of the public discourse on this.” And she pointed out that Chief Justice Roberts, “clearly, time and time again, has proven that institutional reputation of the court is a major consideration for him.” 

McDonnell agreed that “the outcome of the Texas heartbeat cases likely will not affect Dobbs since the arguments are focused on the procedural questions, not the merits of the law,” but “how the [Supreme] Court rules on the S.B. 8 cases will show whether Texas’ novel heartbeat law is a potential avenue for enforcing life-affirming laws.”