The Supreme Court will face a bramble of unsettled legal questions when it reviews Texas’s most-restrictive-in-the-nation abortion law Monday, but the inquiry itself is evidence of a changed court whose view of abortion as a constitutional right is in doubt.
Such an outcome this time around — as the court considers the Texas law and, on Dec. 1, a Mississippi ban on abortion after 15 weeks, far earlier than current Supreme Court precedent allows — would be a bitter disappointment for antiabortion activists who feel this is their chance.
“For two generations, the U.S. Supreme Court has tied the hands of states to enact laws protecting unborn children and their mothers,” Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, said of the Texas legislation. “It is time to restore this right to the people and update our laws.”
Abortion-rights supporters, meanwhile, say the court’s action will have immense consequences, beginning with the Texas law, known as S.B. 8.
“The outcome of this case will define the future of our constitutional democracy,” said Sam Spital, director of litigation at the NAACP Legal Defense and Educational Fund, which is supporting abortion providers and a Justice Department lawsuit against Texas.
“Absent the Supreme Court’s intervention, S.B. 8’s model for openly defying precedent set by the highest court in our land will metastasize — and not just with respect to abortion rights,” he said. “Many of our constitutional rights will be in grave danger.”
In a brief filed last week, more than 120 current and former prosecutors and judges concur. “S.B. 8 is perhaps the most blatant attempt to subvert federal authority since the Jim Crow era,” it says.
Texas’s law virtually bans abortion after six weeks of pregnancy, at odds with Roe and 1992’s follow-up Planned Parenthood v. Casey, which said states may not impose an undue burden on those seeking an abortion before fetal viability, about 22 to 24 weeks.
But Texas’s law was designed to avoid review by federal courts, which are bound by Supreme Court precedent and routinely stop state officials from enforcing laws that attempt to ban abortion or restrict the procedure early in a pregnancy.
Texas has shifted enforcement of the law from state officials to private citizens, who may bring lucrative civil lawsuits against those who aid or abet the prohibited abortions. Those cases must be heard in state court, the state says, and only after the civil suits have been filed.
Pleas by abortion providers to have the Supreme Court step in before the law could take effect Sept. 1 were turned away on a 5-to-4 vote — the most tangible evidence yet of how the court’s conservative majority has shifted.
It is hard to imagine that a court including Justice Anthony M. Kennedy, who retired in 2018, or Justice Ruth Bader Ginsburg, who died last year, would have allowed the Texas law to go into effect.
But both of their successors, Justices Brett M. Kavanaugh and Amy Coney Barrett, were in the five-member majority, along with President Donald Trump’s other Supreme Court nominee, Justice Neil M. Gorsuch. While the court ignored requests to reconsider Roe and Casey as part of Monday’s arguments, doubts about whether they should remain as precedent provide the background for the state’s law that has mostly shut down the availability of abortion in the nation’s second-largest state.
“SB 8 deters violations only because abortion providers perceive that the future of Roe v. Wade is uncertain,” Jonathan F. Mitchell, a former Texas solicitor general who is one of the law’s architects, writes in a filing with the Supreme Court. He represents three private citizens who want to enforce the law, and he will participate in Monday’s arguments.
Any decision of the Supreme Court that overturns Roe will apply retroactively, he notes. That would open those who help with a prohibited abortion to multiple lawsuits and damages of at least $10,000 for each violation.
“No abortion provider can take that risk — even if it is confident that it could defeat SB 8 enforcement lawsuits today — because the law could change while the case is on appeal,” Mitchell writes.
To antiabortion activists, the Texas law passed last spring was brilliant.
“Texas’s genius,” Roger Severino, a senior fellow at the Ethics and Public Policy Center, wrote in the National Review, was to “neutralize the abortion industry’s most potent weapon, the pre-enforcement challenge.”
“Abortion clinics are now in an impossible bind because on the one hand, there is no one to sue because no state official is allowed to enforce the law, while on the other hand, there are too many people to sue because they can’t identify who among the millions of Texas pro-lifers will step forward to enforce the law,” he wrote.
The court on Monday will hear two cases, one brought by abortion providers and the other by the Biden administration, to determine what role federal courts have in reviewing the law.
The abortion providers, led by the Center for Reproductive Rights, wants to prevent judges and county clerks from entertaining the law’s civil suits. The Justice Department has filed suit against the state of Texas.
Texas and the respondents represented by Mitchell said both suits have no basis in precedent.
“No court can ever enjoin another court from hearing a case, because a judge does nothing unlawful by presiding over a lawsuit, even when the lawsuit is seeking to enforce an unconstitutional statute,” Mitchell wrote. “A judge that adjudicates a case does not become a federal lawbreaker unless and until he enters an actual ruling that violates someone’s federally protected rights.”
Texas Attorney General Ken Paxton (R) said the Justice Department is attempting a “striking power-grab.”
“Texas does not cause the United States injury by the mere existence of an allegedly unconstitutional state law that may affect private parties,” he wrote in the state’s filing to the court.
Moreover, “Congress has not given the Attorney General a cause of action to enforce abortion rights … let alone against a State,” he writes.
The abortion providers and Justice Department urge the court not to let the unorthodox nature of the Texas law obscure its intent and effect.
A law “banning abortions at approximately six weeks of pregnancy [is] in clear violation of nearly fifty years of this Court’s precedent,” wrote Marc Hearron, a Center for Reproductive Rights attorney representing state abortion providers.
Biden administration Solicitor General Elizabeth B. Prelogar, confirmed by the Senate on Friday and arguing before the court Monday, called the law “an affront to this Court’s constitutionally assigned role as the final arbiter of the rights the Constitution secures to the people of this nation.”
“Texas’s various procedural objections do not withstand scrutiny once S.B. 8 is recognized for what it is: a brazen nullification of this Court’s precedents accomplished by subverting the judicial review Congress authorized to protect the supremacy of federal law,” Prelogar wrote.
When the Supreme Court first considered a request from abortion providers to keep the law from going into effect, the majority’s one-paragraph opinion cited the “complex and novel” procedural questions and said it was not clear that abortion providers challenging the law were suing the proper defendants.
“Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” the majority wrote in allowing the law to go into effect.
The majority consisted of Justices Clarence Thomas and Samuel A. Alito Jr., along withGorsuch, Kavanaugh and Barrett.
The one-paragraph order said the law presented “serious” constitutional questions and that the order “is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
In a speech at the University of Notre Dame, Alito objected to media opinion pieces that he said promoted “the false and inflammatory claim that we nullified Roe v. Wade. We did no such thing. And we said that expressly in our order.”
But that is not far from what his three liberal colleagues said when the court allowed the law to go into effect.
“Texas law prohibits abortions for the vast majority of women who seek them — in clear, and indeed undisputed, conflict with Roe and Casey,” wrote Justice Elena Kagan, joined by Justices Stephen G. Breyer and Sonia Sotomayor.
And when the court on Oct. 22 again declined a request to halt the law — setting Monday’s argument instead — Sotomayor dissented again.
“For the second time, the Court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas,” she wrote. “For the second time, the Court declines to act immediately to protect these women from grave and irreparable harm.”
Chief Justice John G. Roberts Jr. initially provided a fourth vote for blocking the law, saying it required additional judicial scrutiny. “The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. He would have allowed more time for courts to consider “whether a state can avoid responsibility for its laws in such a manner.”
After the suit brought by abortion providers was turned away, the Justice Department got involved, suing Texas on behalf of those who it said were being denied their constitutional rights. A federal district judge agreed with the government. U.S. District Judge Robert L. Pitman halted the law, writing, “This court will not sanction one more day of this offensive deprivation of such an important right.”
Two days later, however, a panel of the U.S. Court of Appeals for the 5th Circuit overruled him and reinstated the law.
The Supreme Court decided to step in before those judges could consider the law’s merits.
Beyond not reconsidering Roe or Casey on Monday — that question could come up in the Mississippi case — the justices are unlikely even to pass judgment on the constitutionality of S.B. 8, focusing instead on the roles of federal courts in the dispute.
But the Justice Department has asked them to invalidate the appeals court action, which would likely allow abortions after six weeks to resume while the litigation continues.
What to know about the Texas abortion law
The latest: The Supreme Court on Dec. 10 left in place Texas’s six-week abortion ban and provided only a narrow path for providers to challenge the law in federal court.