After oral arguments at the Supreme Court on Monday regarding SB 8, the strict anti-abortion law originating in Texas, justices left the impression that the Lone Star State may have overextended itself when rolling out a bill that is unabashed in its attempt to wrestle bodily autonomy away from women and people who can become pregnant.
SB 8, known as the Texas Heartbeat Act, declares it illegal for an abortion to be performed after six weeks’ gestation, a period during which most pregnancies are not yet detected. It also leaves zero exceptions for pregnancy occurring in cases of rape, sexual abuse, or incest.
Unlike most abortion restriction laws, wherein state officials enforce legislation and are thereby the appropriate target for lawsuits when they arise, SB 8 instead leaves enforcement up to the public by allowing citizens to sue abortion providers directly, as well as anyone believed to have “aided or abetted” an abortion after six weeks.
SB 8 also does not place any limits on a potential plaintiff’s interests. In the simplest of terms, this means that under the Texas bill, all one needs to sue an abortion provider is time and money. With an ample or even modest supply of both, SB 8 can also catalyze financial ruin, since it awards a $10,000 bounty—to be paid by the defendant—to any victorious litigant.
In September, the Supreme Court refused to block enforcement of SB 8. It fast-tracked two appeals: one from abortion providers and the other from the Biden White House in Whole Women’s Health v. Jackson and United States v. Texas, respectively.
Representing abortion providers in Whole Women’s Health, Marc Hearron, attorney for the Center for Reproductive Rights, argued Monday that SB 8 was baldly unconstitutional and asked the court to bar Texas law clerks from accepting any lawsuits invoking the bill.
Newly appointed U.S. solicitor general, Elizabeth Prelogar, represented the Biden administration and illuminated carefully the constitutionality argument at hand.
“If Texas can nullify Roe and Casey [v. Planned Parenthood] in this manner, then other states could do this with other constitutional rights or rights they disfavor,” Prelogar said.
She continued later, saying: “What Texas has done is taken a constitutional precedent form this court and legislated in direct defiance of that precedent and then tried…to box the judiciary out of the equation and prevent the courts from being able to provide any meaningful form of redress.”
This maneuver by Texas is an example of a state actively “flouting the supremacy of federal law,” she concluded.
Justice Elena Kagan appeared to agree with Prelogar’s implications.
“Now we’re open for business,” Kagan opined of an intact SB 8. “There’s nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don’t like.”
During a separate exchange with Texas’ solicitor general Judd Stone, Kagan also bristled with a curt interpretation of what she suspects is one of the inherent goals underlying SB 8.
“The entire point of this law, its purpose, and its effect is to find the chink in the armor of Ex Parte Young, that Ex Parte Young set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws. And the fact, that [...] some geniuses came up with a way to evade the commands of that decision, as well as command the even broader principle that states are not to nullify federal constitutional rights, and to say, ‘We’ve never seen that before, so we can’t do anything about it,‘ I guess I just don’t understand the argument.”
As pointed out in an explainer in The New York Times on Monday, Ex Parte Young emerged in 1908 over a railroad rate dispute involving a federal lawsuit and a state’s attorney general, Edward Young. Ultimately, the high court found that state officials were open game for lawsuits in federal courts. Young, in turn, has acted as a stopgap to the enforcement of otherwise unconstitutional laws for more than 100 years.
Supreme Court Justice Rufus Peckham wrote in the majority decision for Young that injunctions by federal courts against state courts would “violate the whole scheme of government, and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined.”
As noted by the Times: “The twist raised by the Texas anti-abortion case is that state officials are forbidden to enforce the law, which conflicts with the Supreme Court’s current abortion rights rulings.”
SB 8, instead, relies on private citizens to enforce it through the filing of lawsuits against abortion providers—or the people who get abortions or help others get abortions. The U.S. and abortion providers alike want to stop this by securing an injunction that would block state courts from considering them.
Justice Kagan highlighted that the abortion provider and U.S. government’s allegations of a chilling effect brought on by SB 8 were not a figment of anyone’s imagination.
“The provisions in this law have prevented every woman in Texas from exercising a constitutional right as declared by this court. That’s not a hypothetical. That’s an actual,” Kagan said.
Kagan was not the only justice who appeared critical of the Texas bill. Notably, Justice Brett Kavanaugh posed questions Monday, hinting that the bill may become a tool to infringe on other long-standing rights, like the right to bear arms.
Chief Justice John Roberts and Justice Sonia Sotomayor at one point raised the hypothesis that a state could, if SB8 was permitted, decide on its own to levy a $1 million fine, for example, for violations of its gun safety laws.
“Millions and millions [could be] retroactively imposed, even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken, right?” Kavanaugh asked Monday.
Justice Amy Coney Barrett also appeared to share similar concerns about the ripple effects of the bill and, particularly, what sort of defense abortion providers might have when sued, since SB 8 comes with built-in restrictions to what a defendant can argue in court. This was a critical moment; opponents to SB 8 regularly argue the legislation unfairly and significantly prejudices the whole justice system against them from the start.
“So, if that’s the case, the full constitutional defense cannot be asserted in the defensive posture. Am I right?” Barrett said, directing the question at Hearron.
Hearron agreed.
Four justices are almost certain to vote in favor of thwarting SB 8; it is possible that threats to rights beyond having an abortion could sway Justices Kavanaugh and Barrett, bringing that number to six in favor of shutting the Texas law down.
The next test for abortion rights in the U.S. arrives in December. That is when the Supreme Court will hear oral arguments for Dobbs v. Jackson Women’s Health Organization, a direct challenge originating in Mississippi that asks the high court to overturn Roe.
Editor’s note: An earlier version of this post incorrectly suggested that individuals receiving an abortion can be sued but has been clarified to note only abortion providers or those who assist can be sued.
SB 8, known as the Texas Heartbeat Act, declares it illegal for an abortion to be performed after six weeks’ gestation, a period during which most pregnancies are not yet detected. It also leaves zero exceptions for pregnancy occurring in cases of rape, sexual abuse, or incest.
Unlike most abortion restriction laws, wherein state officials enforce legislation and are thereby the appropriate target for lawsuits when they arise, SB 8 instead leaves enforcement up to the public by allowing citizens to sue abortion providers directly, as well as anyone believed to have “aided or abetted” an abortion after six weeks.
SB 8 also does not place any limits on a potential plaintiff’s interests. In the simplest of terms, this means that under the Texas bill, all one needs to sue an abortion provider is time and money. With an ample or even modest supply of both, SB 8 can also catalyze financial ruin, since it awards a $10,000 bounty—to be paid by the defendant—to any victorious litigant.
In September, the Supreme Court refused to block enforcement of SB 8. It fast-tracked two appeals: one from abortion providers and the other from the Biden White House in Whole Women’s Health v. Jackson and United States v. Texas, respectively.
Representing abortion providers in Whole Women’s Health, Marc Hearron, attorney for the Center for Reproductive Rights, argued Monday that SB 8 was baldly unconstitutional and asked the court to bar Texas law clerks from accepting any lawsuits invoking the bill.
Newly appointed U.S. solicitor general, Elizabeth Prelogar, represented the Biden administration and illuminated carefully the constitutionality argument at hand.
“If Texas can nullify Roe and Casey [v. Planned Parenthood] in this manner, then other states could do this with other constitutional rights or rights they disfavor,” Prelogar said.
She continued later, saying: “What Texas has done is taken a constitutional precedent form this court and legislated in direct defiance of that precedent and then tried…to box the judiciary out of the equation and prevent the courts from being able to provide any meaningful form of redress.”
This maneuver by Texas is an example of a state actively “flouting the supremacy of federal law,” she concluded.
Justice Elena Kagan appeared to agree with Prelogar’s implications.
“Now we’re open for business,” Kagan opined of an intact SB 8. “There’s nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don’t like.”
During a separate exchange with Texas’ solicitor general Judd Stone, Kagan also bristled with a curt interpretation of what she suspects is one of the inherent goals underlying SB 8.
“The entire point of this law, its purpose, and its effect is to find the chink in the armor of Ex Parte Young, that Ex Parte Young set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws. And the fact, that [...] some geniuses came up with a way to evade the commands of that decision, as well as command the even broader principle that states are not to nullify federal constitutional rights, and to say, ‘We’ve never seen that before, so we can’t do anything about it,‘ I guess I just don’t understand the argument.”
As pointed out in an explainer in The New York Times on Monday, Ex Parte Young emerged in 1908 over a railroad rate dispute involving a federal lawsuit and a state’s attorney general, Edward Young. Ultimately, the high court found that state officials were open game for lawsuits in federal courts. Young, in turn, has acted as a stopgap to the enforcement of otherwise unconstitutional laws for more than 100 years.
Supreme Court Justice Rufus Peckham wrote in the majority decision for Young that injunctions by federal courts against state courts would “violate the whole scheme of government, and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined.”
As noted by the Times: “The twist raised by the Texas anti-abortion case is that state officials are forbidden to enforce the law, which conflicts with the Supreme Court’s current abortion rights rulings.”
SB 8, instead, relies on private citizens to enforce it through the filing of lawsuits against abortion providers—or the people who get abortions or help others get abortions. The U.S. and abortion providers alike want to stop this by securing an injunction that would block state courts from considering them.
Justice Kagan highlighted that the abortion provider and U.S. government’s allegations of a chilling effect brought on by SB 8 were not a figment of anyone’s imagination.
“The provisions in this law have prevented every woman in Texas from exercising a constitutional right as declared by this court. That’s not a hypothetical. That’s an actual,” Kagan said.
Kagan was not the only justice who appeared critical of the Texas bill. Notably, Justice Brett Kavanaugh posed questions Monday, hinting that the bill may become a tool to infringe on other long-standing rights, like the right to bear arms.
Chief Justice John Roberts and Justice Sonia Sotomayor at one point raised the hypothesis that a state could, if SB8 was permitted, decide on its own to levy a $1 million fine, for example, for violations of its gun safety laws.
“Millions and millions [could be] retroactively imposed, even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken, right?” Kavanaugh asked Monday.
Justice Amy Coney Barrett also appeared to share similar concerns about the ripple effects of the bill and, particularly, what sort of defense abortion providers might have when sued, since SB 8 comes with built-in restrictions to what a defendant can argue in court. This was a critical moment; opponents to SB 8 regularly argue the legislation unfairly and significantly prejudices the whole justice system against them from the start.
“So, if that’s the case, the full constitutional defense cannot be asserted in the defensive posture. Am I right?” Barrett said, directing the question at Hearron.
Hearron agreed.
Four justices are almost certain to vote in favor of thwarting SB 8; it is possible that threats to rights beyond having an abortion could sway Justices Kavanaugh and Barrett, bringing that number to six in favor of shutting the Texas law down.
The next test for abortion rights in the U.S. arrives in December. That is when the Supreme Court will hear oral arguments for Dobbs v. Jackson Women’s Health Organization, a direct challenge originating in Mississippi that asks the high court to overturn Roe.
Editor’s note: An earlier version of this post incorrectly suggested that individuals receiving an abortion can be sued but has been clarified to note only abortion providers or those who assist can be sued.