When the Supreme Court heard oral arguments on Texas’ abortion law on November 1, judges limited their review to the new structure of the law, which bars state officials from enforcing it.
Instead, private citizens – from anywhere in the country – can bring civil suits against anyone who helps a pregnant person seek an abortion against the law. Critics say the law was designed to protect it from challenges in federal courts and attempts to block abortion providers and the government from suing the state and blocking implementation.
Marc Hearron, lawyer for a coalition of abortion providers, argued that providers should be able to initiate legal action targeting not only Texas officials, but also state court judges, clerks, and any private parties responsible for implementing the law . The crux of the argument is that the state legislature cannot craft a law that is immune from review by federal courts, especially where the state has delegated enforcement to the general public.
While the state would be immune from such a trial under normal circumstances, Hearron argued that in this case, the case may move forward as a federal constitutional right is at stake and individuals are taking action. as agents of the State.
“In enacting SB 8, the Texas legislature not only deliberately prohibited the exercise of a constitutional right recognized by this court, but did everything possible to evade effective judicial protection of that right in federal or State, âhe said.
He said the trial should be allowed to go ahead because the state “has delegated execution to literally anyone anywhere except its own state officials.”
Corn Texas Attorney General Judd Stone said the case should not be able to go to federal court because the state is not the appropriate defendant, since SB 8 prohibits state officials from applying the law. He pointed out that the law allows civil suits in state courts after an abortion is challenged.
Critically, Justice Amy Coney Barrett expressed unease that a federal court could not hear the challenge and questioned whether a federal constitutional defense âcould be fully publicizedâ in state courts. She seemed troubled that a state court hearing was sufficient to express constitutional grievances.
And Judge Brett Kavanaugh wondered if other states could copy the law to restrict other rights regarding issues such as gun control and free speech. He asked if the law could not be “easily replicated in other states which discriminate against other constitutional rights”.
Critically, however, while Barrett and Kavanaugh seemed receptive to the vendor argument, both had previously voted to allow the controversial law to remain in force.
Roberts, on the other hand, who reportedly voted to block SB 8, has expressed some concern that vendors are targeting state judges who are likely to apply the law. âYou could understand that the idea of ââsuing the judges kind of caught our attention,â he told Hearron.
But at another point, Roberts worried about the chilling effect of the law. As it is, providers do not attempt to perform abortions due to draconian penalties. This means that Roe v. Wade has become a dead letter in the state.
“From what I understand,” Roberts told Stone, “the only way to get a review by a federal court is, of course, for someone to take action that violates state law.” , suggesting that such legal challenges may never be brought to court. .
Conservative Judge Neil Gorsuch emerged as Texas’ strongest supporter of the argument, while Kagan voiced the most criticism, at one time referring to the architects of the law as “geniuses.”
When it was his turn United States Solicitor General Elizabeth Prelogue vigorously defended the government’s ability to challenge the law, calling it a “blatant attack” on coordinated branches of the federal government.
But Roberts grilled it on the scope of the government’s argument. “The authority you assert is as broad as it gets,” he said, calling it “unlimited and ill-defined” authority.
Judge Samuel Alito said he understood the government’s concerns – “I understand,” he told Prelogar – but rejected his argument that the court’s opinion would only apply to the case in question. âWhen we decide on a case, the rule we make should apply to everyone,â he said.
Kagan continued his attack on the law. She told Stone that if he was right, “we would urge the states – all 50 – with respect to their unprivileged constitutional rights, to try to overturn the law” when it comes to matters such as “guns, same-sex marriage, religious rights.” She said there would be “nothing the Supreme Court could do about it.”