On November 1st the U.S. Supreme Court heard oral argument in two cases challenging Texas’s abortion law. S.B. 8 prohibits abortions in Texas after approximately six weeks. It allows private citizens to sue a person who provides an abortion in violation of S.B. 8 or “aids or abets” such an abortion.
The question before the Court in United States v. Texas is whether the United States may sue Texas, Texas state judges, state clerks, other state officials, or private parties to prohibit S.B. 8 from being enforced. In Whole Woman’s Health v. Jackson the Court will decide “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to private citizens.
S.B. 8 is currently in effect. At the argument the Justices asked no questions about whether S.B. 8 is unconstitutional.
The argument in Whole Woman’s Health v. Jackson focused mostly on whether the abortion clinic in this case could sue state court clerks in federal court to prevent them from docketing cases against parties being sued under S.B. 8. The Texas Solicitor General argued that per Ex Parte Young (1908) the clerks can’t be sued. Ex Parte Young allows state officials acting on behalf of the state to be sued as long as they have some “enforcement connection” with the challenged law. The Texas Solicitor General claimed no state officials have such a connection.
The more liberal Justices (Breyer, Kagan, and Sotomayor) and Justice Kavanaugh seemed to suggest that the Court could broaden the holding of Ex Parte Young. According to Justice Kavanaugh, “a loophole that has been exploited here.” The Court must decide whether it “should…extend the principle of Ex Parte Young to…close that loophole.”
Whole Woman’s Health’s attorney argued federal court pre-enforcement review is necessary in this case for many reasons including that many of S.B. 8’s features, including fines up to $10,000, have a chilling effect making people unwilling to violate the law to generate a lawsuit. Justices Alito and Gorsuch asked numerous questions about ongoing pre-enforcement S.B. 8 state court litigation, presumably to point out that S.B. 8 may be challenged in a forum other than federal court.
Justice Kavanaugh described the United States trying to sue Texas in the United States v. Texas argument as “different, irregular, unusual.”According to the United States it may do so “to protect the supremacy of federal law.” The Texas Solicitor General responded that the United States lacks a “sovereign interest in suing to enforce individual rights.”
Numerous Justices expressed concerned that if the Court rules in the United States’ favor that the United States would, as Chief Justice Roberts articulated, try to regularly sue states over any “state statute that is enforced by private parties–which is a very common phenomenon.”
More liberal Justice Kagan was concerned about what would happen if the Court rules the federal government can’t sue Texas in this case. She opined that so ruling would be “inviting states . . . with respect to their unpreferred constitutional rights to try to nullify the law this Court has laid down … until this law came along no states dreamed of doing [this].”
On December 1st the Supreme Court will hear oral argument in Dobb v. Jackson Women’s Health. In that case Mississippi has asked the Supreme Court to overturn Roe v. Wade (1973). It is possible the Court will issue an opinion in these cases before that argument.