Supreme Court Hints That It May Allow Challenge to Texas Abortion Law

 

Supreme Court Hints That It May Allow Challenge to Texas Abortion Law

 

In two arguments on Monday, the justices considered challenges from abortion providers and the Biden administration to a law that bans abortions after about six weeks.

 

Adam Liptak

By Adam Liptak

Nov. 1, 2021

https://www.nytimes.com/2021/11/01/us/politics/texas-abortion-law-supreme-court.html

 

WASHINGTON — After almost three hours of lively arguments on Monday at the Supreme Court, a majority of the justices seemed inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a federal court challenge to a Texas law that has sharply curtailed abortions in the state.

 

That would represent an important shift from a 5-to-4 ruling in September that allowed the law to go into effect. Justices Brett M. Kavanaugh and Amy Coney Barrett, who were in the majority in that ruling, asked questions suggesting that they thought the novel structure of the Texas law justified allowing the providers to challenge it.

 

Justice Kavanaugh said that permitting a challenge might amount to closing a loophole. Justice Barrett said the law was structured to prevent the providers from presenting a “full constitutional defense.”

 

A decision to allow a challenge would not conclude the case or address whether the law itself is constitutional. Instead, it would return the case to lower federal courts for further proceedings. Moreover, it was not clear whether, if the court allowed either the providers or the administration to sue, it would temporarily block the law while the case moved forward.

 

 

The law, which went into effect on Sept. 1, was drafted to evade review in federal court, a goal the state has so far achieved. The law, which bans most abortions after about six weeks and includes no exceptions for pregnancies resulting from rape or incest, has caused clinics in the state to turn away many women seeking the procedure.

 

There is little question that the ban itself is unconstitutional under two key Supreme Court precedents, Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992. Those rulings prohibited states from barring abortions before fetal viability, or about 23 weeks.

 

The question for the justices was whether abortion providers and the Biden administration are entitled to challenge the law in federal court. Officials in Texas say the novel structure of the law, known as Senate Bill 8, forbids such challenges.

 

It is not clear how quickly the court will rule. While it generally issues opinions about three months after arguments, there are reasons to think it may move much faster in this case.

 

First, the court had put it on an exceptionally fast track, scheduling arguments for just 10 days after it agreed to hear the two challenges. Second, the court said it said it would defer a decision on whether to temporarily block the law “pending oral argument,” suggesting that it might rule promptly on that question even as it considers the other legal issues in the case.

 

Lawyers on both sides said the stakes were very high.

 

“To allow Texas’ scheme to stand would provide a road map for other states to abrogate any decision of this court with which they disagree,” said Marc A. Hearron, a lawyer for the providers. “At issue here is nothing less than the supremacy of federal law.”

 

Judd E. Stone II, the solicitor general for the state of Texas, said allowing the providers to sue would “alter bedrock doctrines organizing the federal courts.”

 

Justice Kavanaugh appeared most interested in whether the justices could find a way to permit the abortion providers to pursue their challenges by suing state officials even though the law was written to try to preclude that approach, notably by barring state officials from enforcing it. The providers instead sought to sue state judges and court clerks.

 

Defenders of the Texas law have invoked a 1908 Supreme Court decision, Ex parte Young, that appears to bar lawsuits to restrain state courts. But the broader meaning of the 1908 case, Justice Kavanaugh suggested, was that states could not totally evade challenges to laws said to be unconstitutional.

 

The Texas abortion providers should be able to sue at least court clerks, he suggested.

 

For her part, Justice Barrett took issue with the state’s assertion that providers could adequately challenge the law by violating it, getting sued and defending themselves by arguing that the law is unconstitutional.

 

“The full constitutional defense cannot be asserted in the defensive posture, am I right?” she asked.

 

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The law does allow defendants to argue that the law had imposed an undue burden on the right to abortion, drawing on language from the Casey decision. But Justice Barrett suggested that the defense permitted by the law was far too narrow.

 

 

The court’s two most recent precedents on abortion, she said, allowed courts to consider “the law as a whole and its deterrent effect.”

 

Justice Samuel A. Alito Jr., who had been in the majority in September, said he did not see how the Supreme Court could allow suits against clerks in state courts.

 

“A clerk performs a ministerial function,” he said. “Somebody shows up with a complaint, wants to file a complaint, and assuming the formal requirements are met, the clerk files the complaint. The clerk doesn’t have the authority to say, you can’t file this complaint because it’s a bad complaint.”

 

The four justices who dissented in September — Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — did not seem to have changed their minds about the law. And Justices Alito, Clarence Thomas and Neil M. Gorsuch asked questions that suggested they thought the federal courts had no role to play.

 

The law allows private citizens to file suits in state courts against doctors, staff members at clinics, counselors, people who help pay for the procedure and even drivers who take a patient to a clinic. Such plaintiffs, who do not need to live in Texas, have any connection to the abortion or show any injury from it, are entitled to at least $10,000 and their legal fees if they win.

 

Chief Justice Roberts asked a telling question.

 

“Assume that the bounty is not $10,000 but a million dollars,” Chief Justice Roberts said, adding, “Do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court process?”

 

The most restrictive in the country. The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of preganancy and makes no exceptions for pregnancies resulting from incest or rape.

 

Citizens, not the state, will enforce the law. The law effectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.

 

Patients cannot be sued. The law allows doctors, staff and even a patient’s Uber driver to become potential defendants.

 

Challenges before the Supreme Court. After the court declined to block the law in a bitterly divided 5-to-4 decision, it will hear arguments that could allow it to reverse course. The case puts Justice Brett Kavanaugh in the spotlight as the most likely member to switch sides.

 

Mr. Stone said no. That answer did not seem to satisfy the chief justice.

 

“Nobody is going to risk violating the statute,” he said, “because they’ll be subject to suit for a million dollars.”

 

“The fact that after all these many years, some geniuses came up with a way to evade the commands of” an important precedent, she said, and “the even broader principle that states are not to nullify federal constitutional rights and to say, ‘Oh, we’ve never seen this before, so we can’t do anything about it’ — I guess I just don’t understand the argument.”

 

Solicitor General Elizabeth B. Prelogar, representing the federal government, said the Texas law was designed “to thwart the supremacy of federal law in open defiance of our constitutional structure.”

 

“States are free to ask this court to reconsider its constitutional precedents,” she said, “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.”

 

Several justices, including ones who had shown sympathy for the providers’ challenge, seemed wary of allowing the federal government to sue states for enacting laws said to violate the Constitution.

 

“You say this case is very narrow, it’s rare, it’s particularly problematic,” Chief Justice Roberts said. “But the authority you assert to respond to it is as broad as can be.”

 

Justice Kavanaugh said there were potential ways to allow the providers’ case to proceed.

 

“Your case, by contrast,” he told Ms. Prelogar, seems “just different and irregular and unusual, and we don’t know where it goes.”

 

Justices Sotomayor, Kagan and Barrett asked what should happen to the administration’s suit if the court allowed the providers’ challenge. Ms. Prelogar said that depended on several factors. If nothing else, the questions were evidence that a split decision on the two challenges is possible.

 

When the Supreme Court last considered the law, in response to an emergency application filed by abortion providers, a five-justice majority refused to block it in a one-paragraph, unsigned order issued just before midnight on Sept. 1.

 

The majority in the Sept. 1 order seemed to invite other kinds of challenges. “This order is not based on any conclusion about the constitutionality of Texas’ law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” it said.

 

When the court agreed to hear appeals in the two cases — Whole Woman’s Health v. Jackson, No. 21-463, and United States v. Texas, No. 21-588 — it put them on an exceptionally fast track. But the court said it would decide only the procedural questions of who is entitled to sue, not the constitutional one of whether the law violates precedents guaranteeing a right to abortion until fetal viability.

 

In December, the justices will hear arguments in a separate case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, which takes on a Mississippi law that bans abortions after 15 weeks. That case is a direct challenge to the constitutional right to abortion.