{"id":12787,"date":"2021-11-03T20:39:03","date_gmt":"2021-11-04T00:39:03","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12787"},"modified":"2021-11-03T20:39:03","modified_gmt":"2021-11-04T00:39:03","slug":"supreme-court-hears-oral-argument-in-two-challenges-to-texas-abortion-law","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/supreme-court-hears-oral-argument-in-two-challenges-to-texas-abortion-law\/","title":{"rendered":"Supreme Court Hears Oral Argument in Two Challenges to Texas Abortion Law"},"content":{"rendered":"

On Monday, the Supreme Court heard oral argument on two challenges to S.B. 8, the Texas law that effectively bans all abortions six weeks after a pregnant person\u2019s missed period. The law went into effect on September 1st, after the Supreme Court declined to vacate the Fifth Circuit\u2019s stay of the district court\u2019s grant of a preliminary injunction<\/a>. That decision<\/a>, rendered on the Court\u2019s \u201cshadow docket,\u201d led to a flurry of criticism and, polling suggests<\/a>, harmed the Court\u2019s public standing. While the Supreme Court again declined to vacate a subsequent stay issued by the Fifth Circuit, it did order expedited briefing and oral argument.<\/p>\n

Texas\u2019s pre-viability ban is unconstitutional under current Supreme Court precedent\u2014 though that may be upended by Dobbs v. Jackson Whole Woman\u2019s Health<\/em><\/a>, which will be argued on December 1st\u2014but, at issue in Monday\u2019s cases were the procedural barriers S.B. 8 erects to making such a challenge in the first place. That is because of the law\u2019s unusual structure: it creates a private right of action against anyone who performs, \u201cabets,\u201d or obtains an abortion, with at least $10,000 in damages (and costs) for the individual who brings suit if they prevail.<\/p>\n

The justices first heard oral argument in Whole Woman\u2019s Health v. Jackson<\/a><\/em>. There, abortion providers are suing state court judges and clerks to enjoin them from docketing lawsuits brought by private citizens under S.B. 8. Texas argued that the providers are barred from pre-enforcement challenges in federal court under Ex parte Young<\/em><\/a>, which permitted lawsuits in federal court to enjoin state officials, but not state courts, from enforcing unconstitutional laws. But Justices Kagan and Kavanaugh said that Texas\u2019s argument directly contradicted with the broader principle set forth in that case and its progeny. Indeed, as Justice Kagan explained in a remarkable exchange<\/a>, \u201cthe entire point of this law, its purpose and its effect, is to find the chink in the armor of Ex parte Young<\/em>,\u201d but \u201cEx parte Young<\/em> set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional laws\u201d that Texas defies here. In doing so, she continued, Texas flouted the \u201ceven broader principle that states are not to nullify federal constitutional rights.\u201d And Justice Kavanaugh, citing an amicus brief, was concerned that ignoring that principle in this instance would invite similarly structured laws directed at other constitutionally protected rights, like the Second Amendment.<\/p>\n

Chief Justice Roberts, who had voted with the liberal justices to vacate the Fifth Circuit\u2019s stays, was also skeptical of Texas\u2019s arguments, questioning whether a hypothetical “bounty” of one million dollars would sufficiently chill constitutionally protected conduct such that \u201cfederal court review prior to the end of the state court process\u201d was appropriate. When the Texas Solicitor General said that it would not change the state\u2019s argument, the Chief Justice noted that this would insulate the law from any review because no one would have the \u201cfortitude to undertake the prohibited conduct . . . [and] it is only by undertaking the prohibited conduct that you can get into federal court.\u201d Indeed, as the providers\u2019 counsel noted, the liability is already prohibitive: S.B. 8 authorizes suits in each of Texas\u2019s 254 counties and \u201cprovides that a victory in one has no preclusive effect in any other,\u201d in addition to the \u201cdraconian\u201d damages\/fee structure. And, as Justice Barrett noted, Texas further attempted to prevent review of the constitutional question by changing the \u201csubstantive rules\u201d as well as the procedural rules at the heart of the case with a provision that says that a defendant must show that an award against them\u2014in a vacuum\u2014would reach the level of an undue burden on people seeking abortions.<\/p>\n

Justice Gorsuch, joined by Justices Thomas and Alito, was skeptical of the providers\u2019 arguments. Unlike the Chief Justice, he seemed unbothered by the particulars of the providers\u2019 chilling effect argument, noting that \u201claws often have chilling effects on the exercise of constitutionally protected rights that can only be challenged defensively,\u201d such as defamation laws that chill speech and pandemic restrictions on forms of religious exercise.<\/p>\n

While six justices seem prepared to allow the providers\u2019 suit to proceed, the fate of United States v. Texas<\/em><\/a> is less certain after that oral argument. U.S. Solicitor General Prelogar framed the United States\u2019 interest as weighty but narrow: a \u201csovereign interest in ensuring that states cannot flout the supremacy of federal law\u201d through laws that attempt to \u201cblock[] the traditional mechanisms for judicial review.\u201d But here, Justices Thomas, Alito, Gorsuch, and Roberts used their questions to express their skepticism that a rule that allowed the United States to sue Texas over S.B. 8 could, in a principled fashion, be limited only to analogously structured laws. Prelogar maintained that such a narrow rule could be derived: it wasn\u2019t, she emphasized, that a constitutional right was under attack by a state but rather that the attack also foreclosed the pre-enforcement remedies afforded by Section 1983 and Ex Parte Young<\/em> that would otherwise safeguard against such affronts to federal supremacy. Still, other questions took the discussion back to the providers\u2019 case, suggesting that a split decision\u2014and thus an opportunity for one mode of pre-enforcement review\u2014is likely.<\/p>\n

Audio and transcripts from both oral arguments are available here<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

On Monday, the Supreme Court heard oral argument on two challenges to S.B. 8, the Texas law that effectively bans 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