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High Court Appears Inclined to Allow Providers to Challenge Texas Abortion Law

November 1, 2021 by Dan McCue
Pro-choice advocates outside the U.S. Supreme Court building, Nov. 1, 2021. (Photo by Dan McCue)

WASHINGTON — After almost three hours of arguments Monday it appears a majority of the justices in the U.S. Supreme Court are inclined to allow abortion providers to challenge the state of Texas’s near total abortion ban.

But they also appeared less inclined to allow a broader challenge filed by the Biden administration that Chief Justice John Roberts at one point called “as broad as can be.”

On Monday, the justices heard two challenges to the law. The first was brought by abortion providers in Texas, and the second was brought by the Justice Department.

The law, which bans most abortions after about six weeks, has been in effect since Sept. 1 when the Supreme Court declined to intervene, except for a 48-hour period in early October when it was blocked by a lower court. 

The law makes no exceptions for pregnancies resulting from rape or incest, and since it was enacted, it has caused clinics in the state to turn away women seeking the procedure.

That led to the Supreme Court getting involved again two weeks ago, and at what, for it, was extraordinary speed.

If the court allows the providers to continue their lawsuit, they or a lower court would then have to issue a separate order to put the law on hold while the legal battle played out.

On Monday, the justices limited their review to the Texas law’s unique structure: it bars state officials from enforcing it and instead leaves enforcement to private citizens or organizations, who can bring civil lawsuits against anyone who assists a pregnant woman seeking an abortion after about six weeks of pregnancy. 

In that way, it subjects clinics, doctors and others who facilitate an abortion to large financial penalties.

Opponents of the law say the law was crafted that way specifically to shield it from challenges in federal court, while making it impossible to sue the state for its implementation.

Texas State Sen. Bryan Hughes, who authored the six-week abortion ban, didn’t disagree when The Well News asked him about that provision of the bill on the steps of the Supreme Court Monday morning.

“This is really the work of Jonathan Mitchell, a former solicitor general of Texas who is now in private practice,” Hughes said. “My name is on the bill, but it’s really his baby. And what he did is he looked at all the ways that blocked us from doing this in the past, and he showed us how to put measures and countermeasures into the bill so we could do it.”

“So far, it’s working,” he continued. “So we’re encouraged.”

In September, the justices voted 5-4 to allow the law to take effect, but on Monday, as hundreds of pro-choice and anti-abortion advocates rallied side-by-side in front of the high court, two conservative justices seemed more concerned by the structure of the Texas law than they did two months ago.

Justices Amy Coney Barrett and Brett Kavanah raised questions about the critical provision, with Kavanaugh going so far as to suggest “there’s a loophole that’s been exploited here” and suggesting, on principle, that the Supreme Court should close it.

Barrett’s biggest concern seemed to be a provision in the Texas law that limits which legal arguments alleged abortion providers can make to defend themselves when sued under the statute. In particular, she seemed worried that under the law, abortion providers would be unable to argue or demonstrate that “an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion.” 

“I’m wondering if, in the defensive posture in state court, the constitutional defense can be fully aired,” she said.

Both Justices Elena Kagan and Sonia Sotomayor tore into the law — and its backers — with Kagan telling Judd Stone II, who argued the case for Texas, that until Texas passed the law no state has dreamed of trying to make an end-around Supreme Court precedent so blatantly.

Later, picking up on a suggestion from Justice Stephen Breyer, Kagan said “the entire point of this law, its purpose and its effect, is to find a chink in the armor of Ex parte Young that set out a basic concept of how our government is supposed to work and how we seek review of unconstitutional state laws.” 

Ex parte Young, dating from 1908, is the Supreme Court case that allowed federal lawsuits against officials acting on behalf of states to proceed despite the state’s sovereign immunity, when they acted contrary to any federal law or contrary to the constitution.

“The fact that after … these many years, some geniuses came up with a way to evade the commands of that decision, as well as the command of 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 that.’ I guess I just don’t understand the argument,” Kagan said.

At another point, Justice Sotomator stared down Stone, asking him whether in essence the Texas law means that “no matter how much a state intends to chill the exercise of a constitutional right … that does not give anyone a right to a federal forum when the state has deputized every citizen to act on its behalf?”

Stone stood firm. “It does not create federal jurisdiction as a consequence,” he said.

As noted above, the justices seemed less inclined to allow the Justice Department to mount a federal court challenge to the law. Justice Kagan, for instance, suggested that a ruling instead in favor of the providers would allow the court to avoid difficult issues of federal power. 

Taking stock of the oral arguments, which were being live streamed from the courtroom and were blaring over a speaker system set up on the sidewalk, Hughes defended the provision, telling The Well News that the concept goes back to English Common Law, which he said allowed private citizens to bring litigation on behalf of the common good.

“Every state has a provision like this in their consumer protection laws. The Federal Tort Claims Act recognizes it,” he continued. “If you have evidence someone is defrauding the federal government, you bring a civil suit against them. And if you prove it, you’re incentivized to do that. 

“So the pieces were there, but in late 2020 we had district attorneys around the country — and even in Texas publicly stated that they would not enforce the law if Roe v. Wade was ever overturned. So if the district attorneys aren’t going to do it, Texas had to respond.”

Standing among the pro-choice advocates rallying outside the Supreme Court building, Eva Stevenson, of Montgomery County, Md., was asked whether she thought the justices inside the building were mindful of the voices outside.

“I would hope so,” Stevenson told The Well News. “I mean, public officials are always talking about ‘We the People,’ and this is a reminder that people care about this issue.”

Holding up a sign that read “Forced Pregnancy is Enslavement,” Stevenson said voicing her opinion outside the Supreme Court “is pretty much all I can do right now, besides writing to senators who won’t listen.

“So being here, while everything is happening with everyone here, it’s empowering,” she said.

Nearby, another pro-choice advocate who identified herself as Olivia from CodePink, said she thinks rallies like the one in front of the Supreme Court building Monday are vital to the national debate on important issues.

“I think we have to keep showing up and being out on the street,” she said. “We can call our Congress people, we can write letters, we can do those things, but we also need people out here to show them that we’re willing to be here and we are not going to be silent.”

Mulling the same question as Stevenson, on whether she truly believed her voice was being heard by the justices, Olivia paused.

“I don’t know. I don’t know any of the people inside. But you’d think with the staff they have, that somebody would be telling them what’s happening out here.

“At the same time, if this is a body that represents the people, they should be paying attention to what the people are doing and saying, right?”

Neither case argued Monday poses a threat of overturning the Supreme Court’s landmark decisions in Roe v. Wade or Planned Parenthood v. Casey, both of which prohibit states from banning abortion before viability, the point at which a fetus can survive outside the womb, around 24 weeks of pregnancy.

The justices will hear a separate challenge to those decisions in a case over Mississippi’s ban on abortion after 15 weeks. Those arguments are set for Dec. 1.

The justices gave no indication Monday as to how quickly they’ll rule on the Texas law or whether they would stay the law or instruct the abortion providers to ask a lower court to do so.

Asked how he’d feel if the court ultimately punted the case, deciding the question is more appropriately resolved in the Congress than in the courts, Hughes said that would be fine.

“That’s how the process works,” he said, gesturing across the street to the U.S. Capitol building as he spoke. “I mean, if you want to change the law, you’re supposed to do it over there at the Capitol, not here at the Supreme Court.

“These guys are supposed to call balls and strikes, as Chief Justice Roberts famously said,” Hughes continued. “I believe that under the law of the land, as it stands now, this Texas law should be upheld. And if someone wants to change the law of the land, they should do it over there, in the Capitol, and not here, at the Supreme Court.”

“No sir, no sir, a ruling that Congress needed to address changing the law if they wanted to strike down this law would not disappoint me in the least. That would be a proper constitutional outcome. If we’re talking about changing the law, that’s the legislative function.

“Obviously, the Supreme Court has been chipping away at Roe v. Wade for a long time, giving states more authority to protect innocent human life,” he said. “We believe they’re going to continue to do that. We don’t know if it’s going to be with this case, or the Mississippi case, or when, but we believe the Supreme Court will ultimately put this question back in the hands of the states. 

“You know, what happened in 1973, seven old men on the Supreme Court decided to answer this question for the rest of the country,” Hughes said. “And ever since then, the people have been trying to take it back. And we believe they are ultimately going to be allowed to, and we believe it’s going to be soon.”

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.

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