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Majority of Supreme Court Justices Appears Highly Skeptical of Texas Abortion Law That Enables Private Lawsuits Against Abortion Providers

Security barricades stand outside the U.S. Supreme Court on Monday, November 1, 2021 in Washington, D.C.

Security barricades stand outside the U.S. Supreme Court on Monday, November 1, 2021 in Washington, D.C.

The majority of justices on the Supreme Court of the United States appeared skeptical during oral arguments Monday toward a restrictive Texas abortion law that created a so-called “limitless” private right of action against abortion providers and others who assist with the termination of pregnancies after about six weeks. The law, known as the Texas Heartbeat Act or by its legislative moniker SB 8, allows anyone to sue abortion providers for damages if the providers terminate a pregnancy after embryonic cardiac activity is detectable.

The court’s left flank — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — all appeared prepared to squash the law based on the questions they asked. So, however, did Justices Brett Kavanaugh and Amy Coney Barrett — conservatives appointed to the bench with hopes from the right that they would restrict or altogether outlaw abortion access. Justice Clarence Thomas and Chief Justice John Roberts also seemed less than enthusiastic about the law. Justices Neil Gorsuch and Samuel Alito seemed inclined to allow the law to stand.

The arguments surrounded not the act of abortion itself; rather, the justices were focused on the more narrow question of whether a state has the power to enable private parties to privately enforce a state policy goal that is contrary to current constitutional law using state courts in a manner that escapes federal judicial review. Many of the justices appeared concerned at the legal regime Texas concocted as applied to this or other cases. Chief Justice Roberts, for instance, asked if another state could allow a private party to sue anyone who purchases an AR-15 rifle for $1 million dollars — a policy goal that would leave conservatives distraught. Additionally, the court was left to consider whether the U.S. Government could intervene in the matter by alleging a “sovereign injury.”

Oral arguments lasted a sum total of approximately three hours.

“In enacting Senate Bill 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,” said Marc A. Hearron, an attorney for abortion provider Whole Woman’s Health. “Texas delegated enforcement to literally any person anywhere except its own state officials. The only conceivable reason for doing so was to evade federal court review under Ex Parte Young,” a case central to the analysis which had an outsized role in the debate.

“The combined effect is to transform the state courts from a forum for the protection of rights into a mechanism for nullifying them,” Hearron argued.

Justice Thomas said Ex Parte Young prevented federal courts from enjoining many state actors — namely judges — from enforcing SB 8.

Hearron argued that Ex Parte Young allowed federal courts to ban Texas court clerks from docketing SB 8 lawsuits and more generally stood for the premise that federal courts could jawbone state officials into submission if necessary. Such a broad reading of past precedent would require the current Supreme Court to limit Young or alter it to fit the current issue — if it is inclined to do so.

Justice Kavanaugh said SB 8 “raises a novel issue” that created significant legal “tension.”

“When state courts entertain private civil suits they enforce state law,” Kavanaugh noted. “Shelley v. Kraemer being the most prominent landmark example of that.  Can you fill in the gaps there and explain to me how we should think about the Ex Parte Young language in light of how we conceptualize state court enforcement of private civil suits now?”

Kavanaugh’s early questions — and at times the later questions of Justice Kagan and some of the other justices — seemed intent on determining the precise legal mechanisms the court should use to do away with SB 8.

Several of the justices seemed disinclined to allow an injunction against judges themselves from entertaining SB 8 lawsuits — since they were inclined to view state judges as neutral arbiters of the issues.

“The state has made the clerks an essential role in this machinery they have created to nullify constitutional right,” Hearron said — again pointing toward the possibility of shutting down the SB 8 lawsuits right from the start.

Justice Breyer noted that SB 8 claims were “not an ordinary tort lawsuit” and articulated six reasons why:  (1) anybody can sue regardless of direct harm; (2) the suits can be filed anywhere in Texas (Breyer noted that a defendant could be hauled into court hours from home, which he said posed a signifiant problem given the state’s size compared to, for instance, Rhode Island); (3) old SB 8 lawsuits have no preclusive effect, meaning that thousands of lawsuits could fail without any bar on the filing of new claims; (4) attorneys fees are shifted to the defendants; (5) the financial penalty — at least $10,000 per abortion, or possibly more — is heavy; and (6) SB 8 explicitly limits defenses, including the “undue burden” defense.

Breyer invited Hearron to articulate other reasons; he offered two more: (7) damages amounts are not tied to the amount of the harm suffered by the plaintiff; and (8) mandatory injunctions just be issued under SB 8 for violators who do not cause direct harms to plaintiffs.

Justice Alito asked several times during the proceedings about legal mechanisms available to women who wished to sue their abortion providers if they came to regret their decisions to abort their pregnancies. The topic seemed front-and-center to Alito’s mind despite it not being the issue of the day.

Justice Kagan also asked the attorney for Whole Woman’s Health what relief was proper. Hearron responded that an injunction against the docketing of the suits by clerks statewide would be proper; he also sought an injunction against other state officials for any residual ability to enforce SB 8 lawsuits.

Kagan lamented the “procedural morass” caused by the “extremely unusual law.”

Kagan also became worried about the particulars of precisely how the court would act — e.g., what it might tell the U.S. Court of Appeals for the Fifth Circuit and the district court should it choose to rubbish SB 8.

Justice Gorsuch suggested that other types of laws, such as gun control laws, pandemic-related limits on religious gatherings, and defamation laws, also have chilling effects on constitutional rights that appeared similar to SB 8. Hearron said SB 8 was different; Gorsuch acknowledged that a line had been drawn in Hearron’s mind which differentiated the matter from other laws.

Justice Kavanaugh chimed in to suggest that Hearron’s reply brief focused more heavily on clerks than did his previous arguments; he questioned whether clerks were merely fulfilling a “ministerial duty” and were “not adjudicating anything” and thus became improper parties for an injunction. Hearron indicated that clerks were the best possible parties to enjoin given the facts.

Texas Solicitor General Judd E. Stone II argued that only Congress, not the SCOTUS, can expand access to lower district courts. He said the federal courts couldn’t even adjudicate this case because it didn’t involve the actions of the executive branch of a state government — the usual suspects for a federal court injunction.

“Why wouldn’t you consider the SB 8 plaintiffs to be private attorneys general?” Justice Thomas asked. He said SB 8 lawsuits were unlike traditional torts because there was likely no “injury to the plaintiff.”

Stone replied that anti-abortion activists who pressed SB 8 lawsuits were similar to plaintiffs in cases alleging a “tort of outrage.”

Roberts zeroed in on whether the dollar amount of the “bounty” created an undue burden on a pregnant person’s ability to seek an abortion. He asked about “a billion dollar” bounty to attempt to force Stone into admitting that the law imposed an unconstitutional burden even through executive branch agents were not enforcing its terms. He also noted that most tort laws do not open up venues anywhere in a state.

Breyer slammed Stone by quoting the words of Oliver Wendell Holmes, Jr., in a famous address to the Harvard Law School Association of New York. Breyer noted that Holmes was on the Ex Parte Young court.

“I do not think the United States would come to an end if we lost our power to declare an Act of Congress void,” Holmes said. “I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”

Breyer attempted to make the point that Ex Parte Young should not be read narrowly as preventing the Supreme Court from enjoining state judges in SB 8 actions; his point was more broad.

Justice Kagan was less than delicate in her description of SB 8.

“Some geniuses came up with a way to evade the commands of that decision as well as the commands that the broader principle that states are not to nullify federal constitutional rights,” she said in an attempt to recap the bill. She said it was ludicrous to argue that because the Supreme Court had “never seen this before” — a private enforcement bill against a current constitutional right — that it therefore could not act to protect the constitutional interest at play.

“There’s a loophole that’s been exploited here,” Kavanaugh said in agreement with Kagan — especially on the point of whether Whole Woman’s Health could effectively seek pre-enforcement federal court review of SB 8.

Kavanaugh joined the chorus of justices who suggested extending the “principle” of Ex Parte Young — not necessarily the language of the decision itself — as allowing the federal courts to intervene in SB 8.

Stone said that the Supreme Court had already “disclaimed” the ability to do what the abortion providers want the court to do.

Kavanaugh did force Stone to admit that a court clerk who dockets an SB 8 lawsuit commits a state action for the purposes of the 14th Amendment — but Stone attempted to pivot by saying the clerks weren’t “committing a wrong.”

Justice Sotomayor pivoted to bemoan that every citizen had been “deputized” to collect the “bounty” for a post-“heartbeat” abortion; Kavanaugh then joined an increasing number of justices who feared other states would enact similar measures that would place a burden on Second Amendment and First Amendment rights though similar mechanisms to SB 8 should the Supreme Court allow the regime to remain unchecked.

Stone attempted to argue that Congress already limited the liability of gunmakers and that state private enforcement bans on Second Amendment rights would be met with challenges which noted the supremacy of federal gun statutes.

Sotomayor jumped in and said the entire point of a constitutional right was that Congress should not have to be asked to pass a law to grant such a right. She said previous decisions of the Supreme Court required constitutional rights be respected “directly” and “indirectly” by state governments.

“You can challenge the assumption, but you’ll waste your time,” she told Stone. Sotomayor at one point flatly suggested in a hypothetical that Stone should assume that the court will hold that the Texas “scheme was intended to chill abortions that were constitutional.”

Gorsuch suggested that abortion providers should have sought to vindicate their rights in Texas state courts; Justice Barrett immediately countered that “all these same problems” would recur because a seemingly limitless number of SB 8 cases could be filed which could, per the terms of the law, not be countered with a defense that previous cases had been scuttled on constitutional grounds — thus leading to myriad litigation and an expense the abortion providers who challenged SB 8 said amounted to the costly burden they feared.

During a brief rebuttal, Hearron said SB 8 affected everyone at an abortion center — including telephone operators at a front desk — and that they feared performing abortions after six weeks because the law even made it possible to sue their own attorneys. That means they’d be left to defend themselves without legal counsel and be on the hook for $10,000 in damages.

The case then turned to the question of whether the U.S. Department of Justice should be allowed to sue the State of Texas to enforce the supremacy of federal law — with SB 8 as the legal vehicle for such a federal-versus-state lawsuit.

“Texas designed S.B. 8 to thwart the supremacy of federal law in open defiance of our constitutional structure,” said newly installed U.S. Solicitor General Elizabeth B. Prelogar. “States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the court’s decisions in their borders, and block the judicial review necessary to vindicate federal rights.”

Prelogar argued that the Supreme Court would be correct to enjoin Texas from passing, its clerks from docketing, and state officials from enforcing SB 8.

Several of the justices pondered whether a decision allowing the DOJ to intervene in SB 8 litigation should be crafted in a manner that would “cabin” or limit its effect to prohibit incessant DOJ meddling in otherwise private civil cases.

Justice Alito noted that it was rare to enjoin judges since — again — they are legally deemed to be neutral arbiters rather than litigants.

Justice Gorsuch asked Prelogar if part of Ex Parte Young needed to be overruled.  Gorsuch then quoted Ex Parte Young:

[A]n injunction against a state court would be a violation of the whole scheme of our government.

[ . . . ]

The difference between the power to enjoin an individual from doing certain things, and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do the former.

No, the solicitor general said; it needed to be limited, perhaps, to focus on clerks — not judges — or SB 8 plaintiffs themselves.

“Do you agree there are instances in which no federal forum is available to adjudicate a federal right?” Gorsuch asked.

“Yes, I do agree, but that is sometimes the case,” Prelogar said.  But she was then interrupted.

“You also agree that it is sometimes the case that a federal right can only be enforced defensively and not in a pre-enforcement challenge?” Gosuch asked.

Prelogar agreed that sometimes also was the case.  She clarified after additional questions that she wasn’t necessarily seeking a rule from the court that would apply to just one case.  She again noted that SB 8 was an example of the state’s attempt to deliberately avoid judicial review through a “procedurally anomalous” that are “stacked” in such a way that they would “chill the right” to abortion.  The solicitor general noted, for instance, that defamation actions do not chill all speech — but that’s because state court proceedings in defamation law are not “heavily weighted” in favor of plaintiffs.

Gorsuch forced Prelogar to agree that “tort laws for defamation,” “gun control laws,” and “laws restricting the exercise of religion” can have a chilling effect. Prelogar agreed that those laws may “on the margin” have effects on the constitutional rights named but were minor in comparison to the SB 8 restrictions.

Sotomayor noted that Prelogar’s argument would likely “be the same” if a state had attempted to use an SB 8 legal scheme to restrict the rights Gorsuch named.

“It would be exactly the same,” Prelogar said, “whether that’s Second Amendment rights, or rights religious liberty, or, here, the right to abortion.”

Justice Breyer asked a broader question which suggested even the court’s liberal flank may be concerned about the possibility of DOJ overreach.

“Is it the federal government, no matter who’s in charge . . . can just go an intervene . . . whenever they think a state law affecting private people is unconstitutional,” Breyer asked among a line of questions which suggested the DOJ might be inclined to sit around and file random lawsuits against random laws on the books in any number of states with which it disagreed.

“We are not urging a broad authority to bring a suit like this in the circumstances you identified,” Prelogar said — then tried to articulate why the Texas SB 8 is unique.

She suggested, citing a line of cases, that litigation by the DOJ is possible when the federal government was acting in the public interest, representing the public at large, and was dealing with subject matter that has been “entrusted to the care of the nation as a whole and for which the nation owes a duty to her citizens.”

Roberts called the government’s attempt to seek an injunction against court personnel “hardly traditional.”

Thomas both wanted to know if the federal government had sued to vindicate the specific constitutional rights of private parties in other situations.

Prelogar said a series of three cases in the 1970s had been launched but was unaware of any others.

“We can’t point to a case that looks exactly like this one,” she said, because no such novel legal regime had ever been passed by a state prior to SB 8.

In response to questions from Kavanaugh, Prelogar called SB 8 “extraordinarily dangerous for our constitutional structure” and argued that the “United States has a sovereign interest in intervening to protect the supremacy of federal law.”

Prelogar said the DOJ should be allowed to sue a state any time a state “violates this courts precedents and tries to shield that violation from any effective judicial review in federal or state court.”

Barrett asked how the DOJ’s case was different from the initial Whole Woman’s Health case.

“Let’s imagine they do prevail,” Barrett said with reference to the Whole Woman’s Health plaintiffs while asking Prelogar what happens to her lawsuit separately.

Prelogar said the remedies may be similar but was separate from whether the DOJ could sue in the first place.

Stone returned to the court’s lectern to assert that the DOJ had no business suing the the state. He said SB 8 plaintiffs did not have enough of an agency relationship with the state itself to be enjoined from filing suits.

Justice Breyer wanted to know the extents by which the SB 8 regime could apply to other areas of law.

“Anyone who begins a black child to a white school is subject to — and then we copied the law . . . what would you do?”

“This is Arkansas in 1957,” Breyer then asserted.

Stone said a state court judge would have to abide by SCOTUS decisions.

Breyer said judges back then were aware of SCOTUS precedent and attempted to “shape the law to avoid it.”

Breyer was trying to corner Stone into answering whether the federal government could step in and remedy the matter where a state court judge refused to follow SCOTUS precedent.

Stone argued that Congress would have to pass specific statutes okaying a federal right of action for those cases.

Sotomayor then raised Supreme Court cases involving gun rights, same-sex marriage, private sexual conduct, and contraceptives as being possible targets of SB 8-style litigation.

“This is not limited to abortion,” Sotomayor said. “It’s limited to any law that a state thinks it’s dissatisfied with.”

Stone tried to wiggle out of it.

“So your point is that no matter how much a state intends to chill the exercise of a constitutional right, as the chief said, imposing a million dollar liability for an act, which I think almost any sane person except a couple of billionaires might choose to resist, that that does not give anyone a right to a federal forum when the state has deputized every citizen to act on its behalf?” Sotomayor asked.

“No,” Stone said — no federal forum would be available. He then complained of an “extraordinary expansion of federal power” the DOJ was seeking. He later said it wouldn’t matter how high the fine would be for the private parties — federal courts could not touch the case.

Sotomayor repeatedly noted that SB 8 had “chilled everybody on the ground” against obtaining constitutionally permissible abortions. She later said “everything” was the chilling — the threat of lawsuits; attorneys fees; venues being miles from home.

Alito suggested that any chill in abortions may be attributable to the “fear” that Roe v. Wade and Planned Parenthood v. Casey might be “altered” and not because of SB 8 itself.

Stone said the fears about SB 8 could not be disambiguated from the broader fears about abortion rights in general.  That argument seemed to belie the documented statements of abortion providers who stopped providing abortions when SB 8 took effect.

Kavanaugh also asked about the possibility that the law surrounding abortion could change “in the future such that the state could, going forward, restrict abortions at an earlier time.”  He asked if the state could “reach back” and “retroactively impose liability” against entities that are currently performing legal abortions but whose acts would in the future be deemed illegal.

Jonathan F. Mitchell, a former Texas solicitor general who is largely credited as the genesis of SB 8, argued that the U.S. government has no legal right to inject itself into the case. Mitchell fought back against Sotomayor’s assertion that the state and SB 8 plaintiffs were acting in concert.

“The state is not directing the activity of these private individuals,” Mitchell said.

Mitchell said the state created a right of action, washed its hands of the matter, and that no agency relationship existed.

“No constitutional right is safe,” Prelogar countered in a rebuttal.  “No constitutional decision from this court is safe.  That would be an intolerable state of affairs, and it cannot be the law.  All constitutional guarantees cannot be that fragile, and the supremacy of federal law cannot be that easily subject to manipulation.”

[Image via Drew Angerer/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.