The Biden administration warned the Supreme Court on Monday of an avalanche of state laws seeking to challenge federal constitutional rights should the justices leave in place Texas’ new law banning most abortions after a fetal heartbeat is detected.
The justices seemed split over whether to allow challenges to the state law to move forward, with Justices Brett M. Kavanaugh and Amy Coney Barrett emerging as likely swing votes.
Texas argues that challengers to the law — abortion providers and the federal Justice Department — lack standing to sue because state authorities don’t enforce the state law. Instead, private citizens can file lawsuits against abortion providers who defy the law.
Elizabeth Prelogar, the Justice Department’s new solicitor general, said that was a tricky way of trying to nullify the federal constitutional right established in the high court’s 1973 Roe v. Wade decision.
“Other states could do the same with other constitutional rights,” she warned. “What Texas has done is taken … precedent from this court and then legislated in direct defiance.”
The court’s three Democratic appointees appeared sympathetic to those claims during the nearly three hours of arguments Monday morning.
Since SB 8, the new law, took effect on Sept. 1, most women have not been able to obtain abortions, Justice Elena Kagan said.
“We have seen what the chilling effect is,” she said. “It has chilled everybody on the ground.”
But Texas argued that the lawsuits are misdirected in attempting to block state judges and court clerks from filing lawsuits.
“No Texas executive official enforces SB 8 … so no Texas official may be enjoined,” said Judd Stone, Texas’ solicitor general. “State judges are expected to faithfully follow federal law and this court’s opinions.”
Under SB 8, citizens can sue anyone who aids in an abortion after a fetal heartbeat is detected, or about six weeks into a pregnancy.
If the civil lawsuit is successful, the individual could receive a reward of at least $10,000. The law allows for medical exceptions, but not for rape or incest.
Justice Kagan said the law was written by “some geniuses” who figured they had found a way to “evade” federal scrutiny of unconstitutional state laws.
“Essentially, we would be inviting states, all 50 of them, with respect to their unpreferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights,” Justice Kagan said.
“The state of Texas hasn’t nullified anything,” Mr. Stone countered.
He said abortion providers who are sued can argue in those cases that they face an unconstitutional burden.
The high court had declined previous attempts to halt the law but sped up proceedings and scheduled Monday’s oral arguments to get to the heart of the legal issues.
Justices Samuel A. Alito Jr., Neil Gorsuch and Clarence Thomas and Chief Justice John G. Roberts Jr. appeared open to Texas’ defense.
Justice Gorsuch said the Justice Department hasn’t sued other states for gun control laws that infringe on the Second Amendment.
“Why does this one get special treatment?” he said. “Gun control laws also have a chilling effect.”
Chief Justice Roberts seemed skeptical of the scope of the injunction the Justice Department requested, which would effectively ban anyone from bringing a lawsuit.
“So, you’re seeking an injunction against the world, right?” he said.
The chief justice voted with the court’s three Democratic appointees to halt the law when the abortion providers first challenged it in September. The court’s other five Republican appointees allowed it to stand.
During Monday’s oral arguments, Justices Kavanaugh and Barrett seemed to emerge as the key votes, asking neutral questions and often following up on inquiries from the Democratic appointees.
Though the two voted initially not to block the law when it came before the court the first time, pro-choice advocates said they saw skepticism of Texas’ law in the justices’ questions.
It is not clear when the justices will issue a decision on whether to halt the law. They won’t decide whether the law is constitutional or not, but rather focus on whether it can be challenged in federal courts.
Marc Hearron, who represented the abortion providers, said Texas was turning the courts “into a weapon that can be used to nullify constitutional rights.”
“I was happy to see that several of the justices obviously had serious concerns with what the state of Texas is doing here by trying to prohibit abortions and outsourcing enforcement,” he said.
Texas Attorney General Ken Paxton said the Justice Department doesn’t have the power to sue Texas just because it disagrees with the goal of the law.
“This attempted federal overreach lacks jurisdiction, and I will oppose the federal government’s efforts to deprive Texans of the right to govern themselves. I will always fight for lives of the unborn, and this law puts our state in the forefront of protecting those without a voice,” he said after the oral arguments.
The justices could find one plaintiff, likely the abortion providers, has standing while the other does not.
Monday’s cases, Whole Women’s Health v. Jackson and United States v. Texas, are a warm-up for another case set for oral arguments Dec. 1 over Mississippi’s ban on abortions after 15 weeks.
These are the first major abortion cases to come before the court since President Trump’s three appointments, which gave the court six GOP-named justices to three nominated by Democratic presidents.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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