The court’s action means the case will return to a district court. It may still be difficult for abortion providers to open their doors again.
When the Supreme Court heard oral arguments on the Texas abortion law on Nov. 1, the justices limited their review to the law’s novel structure, which bars state officials from enforcing it.
Instead, private citizens — from anywhere in the country — can bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law. Critics say the law was crafted to shield it from challenges in federal courts and stymie attempts by abortion providers and the government to sue the state and block implementation.
Marc Hearron, a lawyer for a coalition of abortion providers, argued that the providers should be able to proceed with a lawsuit targeting not only Texas officials but also state court judges, clerks and any private parties who are responsible for implementing the law. The crux of the argument is that the state legislature cannot craft a law that’s insulated from review in federal courts, particularly when the state has delegated enforcement to the general public.
While the state would be immune from such a lawsuit under normal circumstances, Hearron argued that in this instance the case can go forward because a federal constitutional right is at stake and private individuals are acting 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, it did everything it could to evade effective judicial protection of that right in federal or state court,” he said.
He said the lawsuit should be able to go forward because the state “delegated enforcement to literally any person anywhere except for its own state officials.”
But Texas Solicitor General Judd Stone said the case should not be able to proceed in federal court because the state is not the proper defendant, since SB 8 bars state officials from enforcing the law. He stressed that the law allows civil lawsuits to proceed in state courts after an abortion is challenged.
Critically, Justice Amy Coney Barrett expressed discomfort with the idea that a federal court could not hear the challenge and wondered if a federal constitutional defense “can be fully aired” in state courts. She seemed troubled that a state court hearing would be sufficient to air constitutional grievances.
And Justice Brett Kavanaugh wondered if other states might copy the law to restrict other rights concerning such issues as gun control and free speech. He asked whether the law couldn’t be “easily replicated in other states that disfavor other constitutional rights.”
Critically, though, while Barrett and Kavanaugh seemed receptive to the argument put forward by the providers, both had previously voted to allow the controversial law to remain in effect.
Roberts, on the other hand, who would have voted to block SB 8, did express some concern that the providers were targeting state judges who might implement the law. “You might appreciate that the idea of suing the judges sort of got our attention,” he said to Hearron.
But at another point Roberts worried about the chilling effect of the law. As things stand, providers are not attempting to carry out abortions because of draconian penalties. That means Roe v. Wade has become a dead letter in the state.
“As I understand it,” Roberts said to Stone, “the only way in which you get federal court review is, of course, for somebody to take action that violates the state law,” suggesting that such legal challenges may never reach open court.
Conservative Justice Neil Gorsuch emerged as the strongest defender of Texas’ argument, while Kagan expressed the most criticism, at one point sarcastically referring to the law’s architects as “some geniuses.”
When it was her turn, US Solicitor General Elizabeth Prelogar vigorously defended the government’s ability to challenge the law, calling it a “brazen attack” on the coordinate branches of federal government.
But Roberts grilled her on the scope of the government’s argument. “The authority you assert is broad as can be,” he said referring to it as a “limitless, ill-defined” authority.
Justice Samuel Alito said he understood the government’s concerns —”I get it,” he told Prelogar — but he rejected her argument that the court’s opinion would apply only to the case at hand. “When we decide a case, the rule that we establish should apply to everybody,” he said.
Kagan continued her attack on the law. She told Stone that if he were right, “we would be inviting states – all 50 of them – with respect to their unpreferred constitutional rights, to try to nullify the law” when it comes to issues like “guns, same-sex marriage, religious rights.” She said there would be “nothing the Supreme Court could do about it.”
