Biden administration asserts 'no constitutional right is safe’ if Texas abortion law allowed to stand

In closing out the nearly three-hour argument Monday, the Justice Department warned that if the Texas law remains in effect, “no constitutional right is safe. No constitutional decision from this court is safe.”

Prelogar, the solicitor general, asked the justices to allow the government’s case against Texas to proceed and to uphold a district court injunction blocking enforcement of the law, which has effectively halted most abortions in the state.

“Texas’s position is that no one can sue, not the women whose rights are most directly affected, not the providers … and not the United States,” she said, emphasizing the law’s unusual enforcement mechanism, which allows private citizens to sue those involved in performing abortions and gives them a financial incentive.

“Our constitutional guarantees cannot be that fragile and the supremacy of federal law cannot be that easily subject to manipulation.”

The court’s three liberal justices suggested that allowing the Texas law to stand would be an invitation to state legislatures to pass laws invalidating other constitutional rights such as those related to same-sex marriage, gun ownership and religious freedom.

“We would live in a very different world from the world we live in today. Essentially, we would be inviting states, all 50 of them, with respect to their own preferred constitutional rights, to try to nullify the law this court has laid down,” Justice Elena Kagan said.

No state has previously “dreamed” of passing such a law in conflict with the constitutional right to abortion enshrined in Roe v Wade and Casey v Planned Parenthood, she said.

Now, “we’re open for business,” Kagan said, citing Texas’s restrictive abortion law. “There is nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don’t like.”

Justices Stephen G. Breyer and Sonia Sotomayor raised similar concerns about the implications of allowing the Texas law to remain in effect.

Stone, the Texas solicitor general, disagreed and said the state had not “nullified anything” because those opposed to the law can challenge its constitutionality in state court.

Justice Elena Kagan sided with the contention of those challenging the Texas law on the question of whether it has had a “chilling effect” on abortions being performed — noting that the law has effectively halted access to abortion in the nation’s second-largest state and sent Texas patients across state lines to terminate their pregnancies.

“You know, usually in these chilling-effect cases, we’re kind of guessing why this would sort of chill me here,” Kagan said. “We’re not guessing. We know exactly what has happened as a result of this law. It has chilled everybody on the ground.”

Stone argued that the Justice Department’s lawsuit against the Texas law, S.B. 8, “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.”

“No Texas official is a proper defendant in a pre-enforcement challenge to S.B. 8,” Stone argued. “The United States cannot cure that problem by naming the state of Texas as a nominal defendant and then asking for relief that runs against the same Texas officials that are inappropriate targets for an injunction.”

Moreover, he said, the federal government is not “a proper plaintiff” because it cannot claim a sovereign right interest in suing to enforce individual rights under Planned Parenthood v. Casey.

“The remedy it seeks would be completely foreign to traditional equity,” he said. “Congress must create such novel remedies — if they are to exist at all — and Congress has impliedly rejected giving the United States such relief by providing other avenues to vindicate 14th Amendment rights.”

The Justice Department, he argued, is asking the Supreme Court to “disregard all of this.”

“Such a request must be directed to Congress,” he 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.”

Justice Brett M. Kavanaugh characterized the Justice Department’s lawsuit as “irregular” and “unusual,” and asked what authority the federal government has to sue over a state law.

Prelogar acknowledged the unusual nature of the government’s lawsuit and said the Justice Department does not “lightly invoke” its authority to sue Texas to block enforcement of the abortion law.

“The reason we’ve done it here,” she said, is because the law is “so unprecedented, extraordinary and extraordinarily dangerous for our constitutional structure.”

Texas, she said, should not be allowed to evade the Supreme Court’s past rulings by crafting a law to evade judicial review.

Prelogar argued that Texas is trying to “purposefully” make S.B. 8 enforcement proceedings so “procedurally anomalous” with rules that are so “stacked in favor of plaintiffs” that “the clear purpose and actual effect has been to chill the right” to abortion.

“Although it is true that sometimes there’s not a federal forum to raise a federal claim, for example, with defamation, it’s not the case that in those circumstances the state court proceedings are heavily weighted in favor of the plaintiffs with the evident intent to chill the speech from occurring,” the solicitor general said. “The proof is in how this has actually worked in practice, because defamation actions haven’t meant that no speech occurs.”

Justice Neil M. Gorsuch pushed against this claim, arguing that tort laws for defamation have a chilling effect, as well as gun-control laws and laws limiting the exercise of religion.

“We’re supposed to enforce all of them equally,” Gorsuch said. “Why does this one get special treatment?”

Prelogar agreed that those laws can have a chilling effect on certain rights but argued that the Texas law goes further.

“I’m not denying, Justice Gorsuch, that those kinds of laws can have some measure of chilling effect on the margins, but they look nothing like this law,” she said.

Justice Sonia Sotomayor stepped in and asked Prelogar whether she was suggesting that the right to an abortion “is different.”

“If this exact law were issued by a state that wanted to be hostile to gun rights, your argument would be the same, would it not?” Sotomayor asked.

“It would be exactly the same, because the threat here is to the supremacy of federal law,” Prelogar replied.

Chief Justice John G. Roberts Jr. sharply questioned whether the authority to intervene being sought by the Justice Department was too broad and could be used in other cases by other administrations.

“I share some of the concerns that have been voiced by my colleagues who say this case is very narrow, it’s rare, it’s particularly problematic,” Roberts told Prelogar. “But the authority you assert to respond to it is as broad as can be.”

Prelogar responded that the authority being sought is “not limitless.”

“It is the traditional remedy of enjoining implementation of an unconstitutional law,” she said.

Roberts seemed unpersuaded, citing concerns in particular about an attempt to keep judges from hearing cases brought by citizens in Texas seeking to enforce the law.

“It’s hardly traditional to get injunctions against judges, injunctions against everybody, right?” Roberts said. “That’s part of the relief you seek, isn’t it? … So you’re seeking an injunction against the world?”

“No, we’re seeking an injunction against those who actually choose to involve themselves in the constitutional violation by filing suit,” Prelogar said.

Justice Neil M. Gorsuch later echoed Roberts’s questioning, asking if there is a precedent that permits an injunction “against all persons in the country, the world, the cosmos?”

“No, our injunction doesn’t do that either," Prelogar responded.

Justice Samuel A. Alito Jr. expressed skepticism that the Supreme Court could stop state court judges from hearing cases brought under the Texas law.

“When has that been done and how can that be justified?” he asked Prelogar, the Biden administration’s top advocate at the Supreme Court. “How can you enjoin a judge from performing a lawful act?”

Prelogar acknowledged that such an order would be “extremely rare” but appropriate in this case because of the unprecedented design of the law.

“The mere threat of litigation is causing the constitutional harm,” she said of the law that has effectively halted abortion in the nation’s second-largest state.

The Justice Department sued the state of Texas after the Supreme Court initially refused to block the law on Sept. 1.

State court judges are “being used by Texas” to enforce the ban on abortion, Prelogar said. She suggested that an order against the state could apply directly to state court clerks, who docket the lawsuits, instead of state court judges.