SCOTUS Likely to Allow Challenge to Texas Law, But May Still Overturn “Roe”

Texas’s draconian anti-abortion law remained in effect as the Supreme Court heard oral arguments on November 1 about whether it could be challenged in court. Known as the “Texas Heartbeat Law,” Senate Bill 8 (SB 8) outlaws all abortions after cardiac activity can be detected, generally after six weeks of pregnancy when most people don’t know they’re pregnant. The law does not make any exceptions for incest or the rape. It has stopped most abortions in Texas since September 1, when SB 8 went into effect. Texas is home for nearly one in 10 women in childbearing years. PBS NewsHour reported.

SB 8 squarely violates Roe v. Wade, which allows abortions until fetal viability — around 23 weeks. Although it appeared during the arguments that a majority of justices will permit SB 8’s constitutionality to be tested in court, the justices may nevertheless overturn Roe The high court will hear arguments in December 1st Dobbs v. Jackson Women’s Health OrganizationThis article is about a Mississippi law that bans abortions after 15-weeks. The State of Mississippi’s lawyers. Dobbs You are asking the court to rule against you Roe v. Wade

In Texas, the law was written to prevent judicial review. It stipulates that no state official can enforce it. SB 8 deputizes everyone else to sue abortion providers and those who “aid and abet” an abortion — including counselors, family members, clergy and even Uber drivers. Victorious plaintiffs receive a bounty of $10,000 and defendants must pay plaintiffs’ attorneys fees. The Texas legislature has made a cynical effort to bribe people to sue anyone who assists a woman to have an abortion.

Can SB 8’s Constitutionality Be Tested?

Generally, lawsuits can be filed against state officials who are charged with enforcing laws. The State of Texas argues, however, that SB 8 prohibits state officials enforcing it. This means that the law cannot be challenged in court since there are no proper defendants.

During arguments, two cases were considered by the Supreme Court that sought an injunction to halt the enforcement of SB 8. In Whole Woman’s Health v. Jackson.Texas judges and court clerks are being sued by abortion providers. In United States v. TexasThe State of Texas is being sued by the Department of Justice (DOJ). The court is only considering the procedural issue of whether one or both of the cases can proceed through courts.

On September 1, in Whole Woman’s HealthFive members of the court from the right refused to block SB 8 from taking effect, because, they wrote, “It is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.” They did not consider the constitutionality of SB 8. Chief Justice John Roberts voted to stop SB 8 until the constitutional merits could have been considered by lower courts. In Texas, most abortions were still illegal.

September 9, 2009: DOJ sued Texasrequesting an injunction to stop enforcement of SB 8. On September 14, the DOJ filed an Injunction to Stop the Enforcement of SB 8. emergency motion for a temporary restraining order or preliminary injunction  in  United States v. Texasrequesting the court to immediately stop the implementation and implementation of SB 8.

Robert L. Pitman, U.S. district court judge, delivered a 113-page ruling in October 6. granted the DOJ’s request for an injunction. S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution,” Pitman wrote. “This court will not sanction one more day of this offensive deprivation of such an important right.”

Two days later, the Fifth Circuit Court of Appeals overruled Pitman’s decision and reinstated SB 8. Anyone who performed abortions or assisted women to obtain them in the 48 hours between the rulings from the district court and appeals court could still be sued for SB 8.

SB 8 could be a model for targeting other rights

Justices Clarence Thomas (Samuel Alito) and Neil Gorsuch seemed poised to deny both plaintiffs in the lawsuits their day in court, in order to challenge the constitutionality SB 8’s constitutionality. Even though Justices Brett Kavanaugh, Amy Coney Barrett were not present voted to approve SB 8’s passage before it went into effect, they — as well as Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer and John Roberts — appeared open to allowing the Whole Woman’s HealthProceed with the lawsuit

In United States v. TexasHowever, most justices were hesitant to allow the federal government the right to sue a state for violating Constitution rights.

Kavanaugh and Barrett will likely be motivated by the unique structure of SB 8 to allow judicial challenges. Kavanaugh worries that SB 8 can “easily be replicated in other states” to target gun rights and restrict the free exercise of religion and freedom of speech. He Kavanaugh cited concerns from gun lobbyists about states using the same strategy to inoculate strict gun laws and prevent legal challenges. Kavanaugh quoted this amicus brief filed by the Firearms Policy Coalition, which argued that if SB 8 is upheld, “It will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets.”

Barrett was concerned about the fact that even if an abortion provider gets an injunction in state court, it wouldn’t stop other people from bringing new state lawsuits against the same provider. “You cannot get global relief,” She said.

Kagan (agreeing with prior remarks by Breyer) said that the purpose of SB 8 is “to find the chink in the armor of Ex Parte Young, that set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws.” Kagan decried “the fact that after, oh, these many years, some geniuses came up with a way to evade the commands of” that case.

“The combined effect [of SB 8] is to transform the state courts from a forum for the protection of rights into a mechanism for nullifying them,” Whole Woman’s Health attorney Marc A. Hearron told the justices. Texas “has weaponized the state court system into a tool that can be used to abrogate constitutional rights,” he said.

Solicitor General Elizabeth B. Prelogar, representing the federal government, said, “It’s the flood of SB 8 enforcement suits that could be filed that is chilling the exercise of the constitutional right today.” Referring to the people who can’t now get abortions, she added, “Texas has succeeded in being able to nullify the right currently while these cases are working their way through the courts.”

If the court allows either or both cases to proceed, it would not necessarily signal the conservatives’ support for upholding Roe v. Wade. Five right-wingers, including Kavanaugh, and Barrett, voted two years ago to allow SB 8 into effect without any briefing or argument.

The November 1 arguments did not address whether SB 8 could be challenged in court, but whether it would be successful. Stay tuned for the December 1, arguments Dobbs, which doesn’t present the same procedural issues as SB 8. Dobbs However, he does present the court with a request for overturning Roe v. Wade