The U.S. Supreme Court heard oral arguments Monday morning for two cases related to the Texas law that bans abortion at six-weeks of gestation.
The arguments presented procedural questions about whether or not a group of providers and advocates called Whole Women’s Health Coalition and the U.S. Department of Justice can bring separate lawsuits because the only state actors involved in SB 8 are state court judges and clerks. Texas lawmakers wrote the law in such a way as to abrogate responsibility for the law, leaving Whole Women’s Health Coalition in the position of needing to sue each state trial court judge and an injunction against every county clerk in the state of Texas. The DOJ is suing the state of Texas.
If the court rules in either case in favor of either Whole Women’s Health Coalition or the DOJ, the case would go back to the lower court and allow the plaintiff’s legal challenge to the law proceed. The court did not indicate if it would place an injunction on SB 8 to stay the law if either or both cases are allowed to return to the lower courts.
According to SCOTUSblog, a website that tracks the U.S. Supreme Court, the justices appeared likely to rule in favor of Whole Women’s Health Coalition but not in favor of the DOJ because of concern that the Biden administration is seeking “broad power to bring lawsuits against the states.” Which direction either case swings will most likely hinge on Justices Brett Kavanaugh and Amy Coney Barrett, according to SCOTUSblog’s analysis.
One of the debates of both cases were the broader implications of the Texas law. Justice Sonia Sotomayor brought up Griswold v. Connecticut, the 1965 Supreme Court case that ended state bans on married couples’ use of contraception, as well as other civil rights cases, such as Lawrence v. Texas, which ended states’ ability to bring criminal punishment for sodomy in 2003, and Obergefell v. Hodges, the landmark 2015 case that recognized same-sex marriages.
Several of the justices were concerned about the ability of states to apply the Texas law not just to abortion, but to virtually any other constitutional right that a state does not agree with and allow individuals to sue those perceived as violating the state law.
Justice Elena Kagan said the Texas law is “weaponizing the court,” with this law. Justice Brett Kavanaugh, said “there’s a loophole that’s been exploited here or used here, which is the private suits are enforced by state court clerks or judges.”
He later went on to say that the “Firearms Policy Coalition says ‘this will easily become the model for suppression of other connotational rights with Second Amendment rights being the most likely targets.’ And it could be free speech rights. It could be free exercise of religious rights. It could be Second Amendment rights if this position is accepted.”
Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said after the oral arguments that it’s important to remember that the law under question is about abortion.
“It’s a completely reasonable proposition that anybody who cares about constitutional rights should be concerned about states intentionally circumventing our legal rules from across the political spectrum and ideological spectrum. It’s an entirely reasonable position to take but we should not lose sight that this is about an abortion ban. It is entirely reasonable regardless of a person’s position on abortion to have a concern about constitutional rights if we are saying a state can exploit or create a loophole,” she told NM Political Report.
But, Rushforth said it’s important to remember that abortion rights have never been held in as high a regard as other fundamental constitutional rights.
“We have to acknowledge that abortion rights have been treated very differently than other fundamental rights,” she said.
Rushforth said the justices, in their lines of questioning the lawyers, are really talking to each other. She said she “heard a lot of conversation between the justices.”
“They work really closely together. They don’t work in a silo,” and added that some of the justices are “masterful at speaking to [other] justices through the litigants.”
Rushforth said that while she is “not sure” if SB 8 would lead to other constitutional rights being questioned, she is certain of other states passing copycat legislation to Texas SB 8. That has already begun.
“I think particularly when it comes to anti-abortion rights’ decades old concerted effort to undue access and rights, we are giving a playbook to other extremist ideologies to subvert fundamental principles of our democracy and so it is certainly a road map for folks who want to limit other fundamental rights. But the biggest urgency is the road map for other states to ban abortion,” she said.
One thing that is important to keep in mind when comparing abortion rights to other fundamental rights is that abortion access is “time sensitive,” and that is not necessarily the case with other fundamental rights, Rushforth said.
“To ignore the reality of the impacted people in an abortion ban is just unconscionable,” she said.
Another concern that came up during the oral argument for Whole Women’s Health Coalition was the fact that anyone can sue and repeat litigation over the same abortion can continue without stop. Texas established that individuals can sue at minimum $10,000 in civil court for “aiding or abetting” an abortion, which has essentially established what many call a “vigilante” system. Chief Justice John Roberts said an individual could sue for $1 million.
Several of the justices talked about the “chilling” affect this law has had and will continue to have on abortion providers.
But, ultimately, the lawyer for Whole Women’s Health Coalition argued that the case was one that could call into question the entire supremacy of the courts and federal law if Texas succeeds in avoiding federal judicial review. Individuals or providers who could be sued for providing an abortion cannot question the constitutionality of SB 8 despite the fact that it violates Roe v. Wade because of the lack of state actors involved in upholding the law.
Rushforth said that though the procedural questions about bringing civil lawsuits are “incredibly important” it’s “so easy to forget about the person at the center of this litigation.”
“It’s so easy when talking in the abstract about federal law and judicial supremacy to remember seven million people have had their constitutional rights decimated and have had to make impossible decisions while the courts deliberate on how to protect those rights and if to protect those rights. The laws and regulations on the page really don’t let us think about the person that has to drive six hours one way to take time off from work, find childcare and leave her home to get basic reproductive healthcare while lawyers and judges litigate their rights,” she said.