Supreme Court Appears Open to Letting Providers Challenge Texas Abortion Law
The Supreme Court heard two challenges on Monday to the law, which bars most abortions in Texas after about six weeks of pregnancy. The first was brought by abortion providers in Texas, and the second was brought by the Justice Department.
Nov. 1, 2021
Key Updates:
Nov. 1, 2021, 1:24 p.m. ETNov. 1, 2021
Nov. 1, 2021
By Adam Liptak
The Supreme Court hints that it may allow a challenge to the Texas abortion law.
Image
Capitol Police officers stand guard as abortion rights demonstrators participate in a protest at the Supreme Court.Credit...Tom Brenner for The New York Times
After almost three hours of lively arguments, a majority of the justices seemed inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a challenge to a Texas law that has sharply curtailed abortions in the state.
That would represent an important shift from a 5-to-4 ruling in September that allowed the law to go into effect. Justices Brett M. Kavanaugh and Amy Coney Barrett, who were in the majority in that ruling, asked questions suggesting that they thought the novel structure of the Texas law justified allowing the providers to challenge it.
Justice Kavanaugh said that might amount to closing a loophole. Justice Barrett said the law was structured to prevent the providers from presenting a “full constitutional defense.”
Such a decision would not conclude the case or address whether the law itself is constitutional. Instead, it would return the case to lower courts for further proceedings. It was, moreover, not clear whether the court would temporarily block the law while the case moved forward if it allowed either the providers or the administration to sue.
The law, which went into effect on Sept. 1, was drafted to evade review in federal court, a goal the state has so far achieved. The law, which bans most abortions after about six weeks and includes no exceptions for pregnancies resulting from rape or incest, has caused clinics in the state to turn away many women seeking the procedure.
Nov. 1, 2021, 1:24 p.m. ETNov. 1, 2021
Nov. 1, 2021
By Charlie Savage
Top lawyers dueled over Texas’ novel anti-abortion law.
Image
Texas’ solicitor general, Judd Stone, left; an attorney for the Center for Reproductive Rights, Marc Hearron, center; and the federal solicitor general, Elizabeth Prelogar, right.Credit...Federalist Society; Dayna Smith/Center for Reproductive Rights; Shutterstock
The United States solicitor general and a lawyer for Texas abortion providers urged the Supreme Court on Monday to block enforcement of the state’s anti-abortion law, while a top lawyer for Texas told the justices they had no power to do so.
Over about three hours of arguments that sometimes delved into highly technical matters, the Supreme Court wrestled with whether it could or should issue an injunction barring Texas state courts from hearing suits filed under the law, known as Senate Bill 8.
The law, which bars most abortions after about six weeks, has raised novel issues because it is not clear whom a court could order not to carry it out. It relies not on government officials but on private citizens to enforce it, with $10,000 bounties for successful lawsuits.
Arguing that the Texas law was blatantly unconstitutional and was chilling people’s exercise of their rights, Marc A. Hearron, a lawyer with the Center for Reproductive Rights, which represents the providers, said the Supreme Court should enjoin clerks of Texas state courts from accepting such lawsuits.
But Texas’ solicitor general, Judd Stone II, argued that it would be unconstitutional for the federal judiciary to enjoin a state court or state judge from hearing such lawsuits. He cited a 1908 case called Ex parte Young, which said state officials could be sued in federal court to block enforcement of unconstitutional state laws but also said that this mechanism could not be used to “restrain the state court from acting in any case brought before it.”
The federal solicitor general, Elizabeth Prelogar, argued that the principle laid out in the 1908 case did not apply to the situation raised by the Texas state law, which she said was written to evade judicial review and thwart the supremacy of federal law.
“I recognize that this seems like a novel case, and that’s because this is a novel law,” Ms. Prelogar said. “But we do not think that a recognition here that the United States can intervene to try to protect the supremacy of federal law would open the floodgates” in ordinary state court proceedings.
The Supreme Court heard two challenges on Monday to the law, which bars most abortions in Texas after about six weeks of pregnancy. The first was brought by abortion providers in Texas, and the second was brought by the Justice Department.
Nov. 1, 2021
Key Updates:
- The Supreme Court hints that it may allow a challenge to the Texas abortion law.
- Top lawyers dueled over Texas’ novel anti-abortion law.
- What is Ex Parte Young, much-discussed in the Texas abortion case?
Nov. 1, 2021, 1:24 p.m. ETNov. 1, 2021
Nov. 1, 2021
By Adam Liptak
The Supreme Court hints that it may allow a challenge to the Texas abortion law.
Image
Capitol Police officers stand guard as abortion rights demonstrators participate in a protest at the Supreme Court.Credit...Tom Brenner for The New York Times
After almost three hours of lively arguments, a majority of the justices seemed inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a challenge to a Texas law that has sharply curtailed abortions in the state.
That would represent an important shift from a 5-to-4 ruling in September that allowed the law to go into effect. Justices Brett M. Kavanaugh and Amy Coney Barrett, who were in the majority in that ruling, asked questions suggesting that they thought the novel structure of the Texas law justified allowing the providers to challenge it.
Justice Kavanaugh said that might amount to closing a loophole. Justice Barrett said the law was structured to prevent the providers from presenting a “full constitutional defense.”
Such a decision would not conclude the case or address whether the law itself is constitutional. Instead, it would return the case to lower courts for further proceedings. It was, moreover, not clear whether the court would temporarily block the law while the case moved forward if it allowed either the providers or the administration to sue.
The law, which went into effect on Sept. 1, was drafted to evade review in federal court, a goal the state has so far achieved. The law, which bans most abortions after about six weeks and includes no exceptions for pregnancies resulting from rape or incest, has caused clinics in the state to turn away many women seeking the procedure.
Nov. 1, 2021, 1:24 p.m. ETNov. 1, 2021
Nov. 1, 2021
By Charlie Savage
Top lawyers dueled over Texas’ novel anti-abortion law.
Image
Texas’ solicitor general, Judd Stone, left; an attorney for the Center for Reproductive Rights, Marc Hearron, center; and the federal solicitor general, Elizabeth Prelogar, right.Credit...Federalist Society; Dayna Smith/Center for Reproductive Rights; Shutterstock
The United States solicitor general and a lawyer for Texas abortion providers urged the Supreme Court on Monday to block enforcement of the state’s anti-abortion law, while a top lawyer for Texas told the justices they had no power to do so.
Over about three hours of arguments that sometimes delved into highly technical matters, the Supreme Court wrestled with whether it could or should issue an injunction barring Texas state courts from hearing suits filed under the law, known as Senate Bill 8.
The law, which bars most abortions after about six weeks, has raised novel issues because it is not clear whom a court could order not to carry it out. It relies not on government officials but on private citizens to enforce it, with $10,000 bounties for successful lawsuits.
Arguing that the Texas law was blatantly unconstitutional and was chilling people’s exercise of their rights, Marc A. Hearron, a lawyer with the Center for Reproductive Rights, which represents the providers, said the Supreme Court should enjoin clerks of Texas state courts from accepting such lawsuits.
But Texas’ solicitor general, Judd Stone II, argued that it would be unconstitutional for the federal judiciary to enjoin a state court or state judge from hearing such lawsuits. He cited a 1908 case called Ex parte Young, which said state officials could be sued in federal court to block enforcement of unconstitutional state laws but also said that this mechanism could not be used to “restrain the state court from acting in any case brought before it.”
The federal solicitor general, Elizabeth Prelogar, argued that the principle laid out in the 1908 case did not apply to the situation raised by the Texas state law, which she said was written to evade judicial review and thwart the supremacy of federal law.
“I recognize that this seems like a novel case, and that’s because this is a novel law,” Ms. Prelogar said. “But we do not think that a recognition here that the United States can intervene to try to protect the supremacy of federal law would open the floodgates” in ordinary state court proceedings.
