Key justices skeptical of Texas abortion law structure

Three conservative justices expressed discomfort with how the law has outflanked legal challenges

Protesters rally outside as the Supreme Court hears two challenges to a Texas abortion law on Monday. (Bill Clark/CQ Roll Call)
Protesters rally outside as the Supreme Court hears two challenges to a Texas abortion law on Monday. (Bill Clark/CQ Roll Call)
Posted November 1, 2021 at 4:18pm

The Supreme Court appeared ready Monday to give abortion providers a legal pathway to stop a Texas law that effectively bans the procedure after about six weeks, in part because a polarized Congress is unlikely to clarify how it and any copycat laws could be challenged in federal courts.

Key justices aired concerns during three hours of oral argument that other states could replicate the design of the Texas law to curtail other constitutional rights recognized by the Supreme Court, such as gun rights or religious rights.

That includes Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Amy Coney Barrett, all of whom expressed discomfort with how the Texas law has outflanked the typical process to halt enforcement of a law while a constitutional challenge moves through the court system.

The justices have agreed to decide procedural challenges in two lawsuits from abortion providers and the Justice Department. In both cases, lower courts and the Supreme Court did not stop enforcement of the law amid concerns about how judges could order that it not be enforced.

The law has sharply reduced abortions in the state for the past two months amid the resulting legal uncertainty. Marc Hearron, the attorney who argued for the abortion providers, told the justices Monday that “to allow Texas’ scheme to stand would provide a road map for other states to abrogate any decision of this court with which they disagree.”

The Supreme Court long ago ruled that courts can order state officials not to enforce a law while the courts consider whether it is unconstitutional. Texas got around that pre-enforcement review with a law that bars state officials from enforcing the law and instead empowers private citizens to file civil actions for a minimum of $10,000 against those who perform an abortion or who aid an abortion.

Roberts, during an exchange with the Texas solicitor general, expressed concern that the only way abortion providers can get into federal court under the Texas law is to violate the law and defend themselves. If the potential minimum penalty were raised to $1 million under a similar law in a different state, it would take “a lot of fortitude” to violate it, Roberts said.

The Texas solicitor general, Judd Stone, told the justices that those concerned about a Texas-style law could go to Congress and ask for a statute that would allow for immediate federal review. But without that, Stone said, other states could use the same type of law to evade judicial review for other rights, even if the potential civil penalty were $1 million.

Kavanaugh brought up the example of a state passing a law that anyone who sells an AR-15, an assault-style rifle, would be liable for $1 million and would not be able to challenge that law unless they take that financial risk, and the same for other constitutional rights identified in briefs in the case.

“For some of those examples, I think it would be quite difficult to get legislation through Congress,” Kavanaugh said. “Are you saying, absent that, that Second Amendment rights, free exercise of religion rights, free speech rights, could be targeted by other states” like what happened in Texas?

Justice Elena Kagan picked up on that potential remedy for a different reason. “Your answer to Justice Kavanaugh, which is, ‘Go ask Congress,’ I mean, isn’t the point of a right that you don’t have to ask Congress?” Kagan said. “Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?”

Stone replied that challengers to the Texas abortion law have to assume that state judges who oversee the civil actions will faithfully apply the Constitution and the Supreme Court’s precedents that established the right to an abortion. “They will have to occur through the state court process to be sure, but that is an adequate substitute and adequate venue,” Stone said.

But Barrett listed several provisions in the Texas law that also curtailed those state court challenges. “So if that’s the case, the full constitutional defense cannot be asserted in the defensive posture. Am I right?” Barrett said.

Potential options floated by justices included a path for abortion providers to seek a court order for state clerks to halt the filing of civil actions, or an order that stops private parties from filing those actions as an extension of the power of the Texas attorney general.

The justices were not as open to arguments from the Justice Department that the federal government should be able to file a lawsuit against Texas in a situation where a state law that curtails a constitutional right seeks to eliminate court review.

Several justices expressed concerns that allowing the Justice Department lawsuit would give too much authority to the federal government to interfere with state laws it considered unconstitutional.

The justices are expected to issue rulings on the procedural issues only in these two cases quickly, as the arguments occurred only 10 days after they agreed to decide the case.

About two months ago, the Supreme Court allowed the law to go into effect in a 5-4 ruling in the case brought by abortion providers. The majority cited the “complex and novel” procedural questions raised by the unusual design of the law.

The law essentially bans procedures after about six weeks of pregnancy, which the Justice Department says covers about 85 to 95 percent of all abortions in the state.

Texas women now must travel out of state if they want to end a pregnancy under the current Supreme Court precedent that established the right to abortion prior to viability, or when the fetus could survive outside the womb. Some women don’t have the time, money or ability to make such trips.