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Supreme Court seems willing to allow challenge of Texas’s restrictive abortion law

Justice Kagan said on Nov. 1 that the Texas law S.B. 8, which prohibits abortion after six weeks, allows the state to nullify federal constitutional rights. (Video: The Washington Post)

A majority of Supreme Court justices Monday seemed willing to allow a challenge by abortion providers to a unique Texas law that bans most abortions after six weeks of pregnancy and allows enforcement by private citizens.

The court’s three liberal justices have already said they believe that the law is unconstitutional and that it should be halted until federal courts can look at it more closely. The court in a 5-to-4 vote turned down that option before the law went into effect Sept. 1.

But at Monday’s three-hour hearing, Justices Brett M. Kavanaugh and Amy Coney Barrett — part of that five-justice majority — repeatedly and pointedly questioned Texas’s arguments and seemed more swayed by challengers’ claims that the law improperly blocks the judicial review necessary when constitutional rights are at stake.

Justice Kavanaugh on Nov. 1 presented hypotheticals regarding whether states could use similar citizen-led enforcement schemes to avoid federal intervention. (Video: The Washington Post)

“There’s a loophole that’s been exploited here or used here,” Kavanaugh said to Texas Solicitor General Judd E. Stone II, and suggested it might be better to close it rather than allow Texas to employ it.

Barrett seemed concerned that the Texas law was written to avoid federal judicial review, but that it also would be hard for challengers to get relief in state court, where Texas said the constitutionality of the law should be challenged.

Hearing updates: Texas, abortion providers clash over restrictive law’s ‘chilling effect’

The Supreme Court might rule more quickly than usual on what is in essence a procedural question. The question before the court does not require it to decide the constitutionality of the Texas law nor raise questions — for now — about whether it should revisit its abortion jurisprudence.

The justices are considering two cases, one brought by abortion providers and the other by the Biden administration. In their questioning, the justices seemed more interested in deciding the challenge brought by the clinics, rather than confronting the issues raised by the federal government suing one of the states.

The lack of judicial review was central to the arguments of both the abortion providers and Biden’s solicitor general, Elizabeth B. Prelogar.

“In enacting Senate Bill 8, the Texas Legislature not only deliberately prohibited the exercise of a constitutional right recognized by this court, it did everything it could to evade effective judicial protection of that right in federal or state court,” said Marc A. Hearron, the lawyer from the Center for Reproductive Rights representing Whole Woman’s Health.

Prelogar, who was confirmed by the Senate on Friday, said no constitutional right or Supreme Court precedent is safe should the court side with Texas.

“S.B. 8 is a brazen attack on the coordinate branches of the federal government,” she told the court. “It’s an attack on the authority of this court to say what the law is and to have that judgment respected across the 50 states. . . . The United States may sue to protect the supremacy of federal law against this attack.”

Stone, the Texas solicitor general, said the state’s judges are willing and obligated to find the law unconstitutional if the abortion providers can prove that it is.

The law is not “a novel problem for which this court must concoct a novel solution,” he said. “Even if it were, and it is not, such a request must be directed to Congress” and not the Supreme Court.

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Republican-led states and conservative activists have asked the court to use next month’s case over Mississippi’s ban on abortions after 15 weeks of pregnancy to overturn 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey. They prohibit bans on pre-viability abortions, usually meaning before 22 to 24 weeks. Those arguments are set for Dec. 1.

The cases the court heard Monday raise complicated questions about legal procedure precisely because S.B. 8 was intended to avoid federal court review. Its effect is to ban abortions before many know they are pregnant.

But its enforcement structure was designed to keep it from being stopped by federal judges before it went go into effect — the fate of other state laws prohibiting abortion earlier than Supreme Court precedent allows.

In United States v. Texas and Whole Woman’s Health v. Jackson, the justices considered the law, which prohibits abortions after cardiac activity is noted in the embryo. There is no exception for rape or incest, and the abortion patient cannot be sued.

The law is enforced by private citizens rather than the state government. Any individual can sue anyone who aids or abets a prohibited abortion. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint.

The Supreme Court’s three liberal justices clearly disagreed with Stone’s view that the law was not novel.

Justice Stephen G. Breyer said he had compiled a list of six ways the law is unconventional, including that it allows any individual to sue those who aid abortion in any of the state’s 254 counties, and that winning one suit doesn’t preclude the defendant from being sued again.

Justice Elena Kagan said the procedural questions obscured the bottom line that, as Kavanaugh had noted, Texas officials were trying to exploit a loophole.

“The fact that after all these many years, some geniuses came up with a way to evade the commands” of the court’s jurisprudence should not be rewarded, Kagan said, with the court saying, “ ‘Oh, we’ve never seen this before, so we can’t do anything about it.’ . . . I just don’t understand the argument.”

Chief Justice John G. Roberts Jr. two months ago agreed with the liberal justices that the law should not go into effect without more judicial review. On Monday, he questioned the state’s contention that abortion providers should be willing to risk a trip to court to prove the law unconstitutional.

What if the “bounty” awarded to those who file successful suits was $1 million instead of $10,000, he asked Stone.

“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?” Roberts asked.

Stone said no, the amount of money was not the issue.

Supreme Court embarks on most dramatic reckoning for abortion rights in decades

When the Supreme Court considered a request from abortion providers to keep the state law from going into effect at the end of the summer, the majority’s one-paragraph opinion cited the law’s “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 with President Donald Trump’s three appointees: Neil M. Gorsuch, Kavanaugh and Barrett.

Alito and Gorsuch were the justices who seemed most sympathetic to the Texas law at Monday’s hearing.

Gorsuch suggested that the administration thought only abortion should get “special treatment.”

He repeatedly asked Prelogar if other laws — gun control, for instance, or laws that could restrict the exercise of religion — did not “chill” constitutional rights. But they have to be challenged after going into effect, he said.

“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,” Prelogar said.

Kagan interjected to say the effect of Texas’s law is clear, because in the two months that the law has been in place almost all abortions after six weeks of pregnancy have stopped.

“You know, usually, in these chilling-effect cases, we’re kind of guessing,” Kagan said. “Here, we’re not guessing. We know exactly what has happened as a result of this law.”

Alito said the federal government was asking too much in seeking to keep state judges and clerks from accepting S.B. 8 cases.

“How can you enjoin a judge from performing a lawful act, which is the adjudication of a case that is filed before the judge?” he asked. Likewise, he said, clerks perform a “ministerial” function.

After the lawsuit brought by abortion providers was turned away, the Justice Department got involved, suing the state of 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. It said it would consider the merits of the law in December. But the Supreme Court agreed to the request from abortion providers and the Justice Department not to wait for the 5th Circuit to rule on the merits.

The justices grappled with what exactly relief for those challenging S.B. 8 would be.

Prelogar said the court should rule that the United States can proceed with its suit, reinstate the injunction from Pitman and dissolve the 5th Circuit’s action.

“So that Texas cannot continue to deny women in its borders a right protected by this court’s precedents one day longer,” she said.

Mariana Alfaro, Ann E. Marimow and John Wagner contributed to this report.