The Supreme Court received a flood of legal briefs Wednesday concerning Texas’ six-week abortion ban, which has rendered Roe v. Wade a dead letter in the country’s second largest state, in advance of next week’s oral arguments.
The filings come after the court agreed last week to fast-track an appeal from a coalition of abortion providers and lawyers for the Biden administration, who argue that the law is in clear violation of a nearly 50-year-old court precedent and represents the most restrictive ban in the nation. The court’s move to expedite the dispute signals that the justices understand it to be among the most urgent cases the Roberts court has considered.
Critics of the law reflected that urgency by stressing the law’s impact in Texas in the new briefs.
A lawyer for the Biden administration told the justices that the law was designed to “nullify” Supreme Court precedent and that “so, far it has worked.” The government argues that the law has “effectively eliminated abortion in Texas” and represents a “brazen attack” on the “supremacy of federal law.”
Abortion providers urged the justices to step in.
“Where, as here, a State enacts a blatantly unconstitutional statute, assigns enforcement authority to everyone in the world, and weaponizes the state judiciary to obstruct those courts’ ability to protect constitutional rights, the federal courts must be available to provide relief,” a lawyer for one of the clinics said.
S.B. 8, the law in question, bars abortions often before a woman knows she is pregnant and is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.
On September 1, a 5-4 Supreme Court allowed the law to go into effect while legal challenges continued, causing a firestorm in the country as women scrambled to find ways to obtain reproductive care in Texas, overwhelming clinics in nearby states. Chief Justice John Roberts sided with the court’s left wing in dissent, with the liberal justices calling the law “flagrantly” unconstitutional.
After the court’s order, polls found that public opinion of the justices reached a new low and that only 1/3 of the country wanted the court to overrule Roe v. Wade.
Last week, the court agreed to take a new, more comprehensive look at the law, reigniting the debate and placing the justices back under an unwelcome political spotlight.
The case comes at a fraught time, as the conservative majority appears intent on moving the court to the right at a fast clip, while the liberals are seeking ways to limit broad conservative holdings. For his part, Roberts has shown an incremental streak at times, with a focus on the court’s institutional legitimacy. In an unusual show of force in the past weeks, several of the justices appeared publicly to defend the reputation of the court, while progressive interest groups have been pushing for change, including adding more justices to the bench in an attempt to dilute the 6-3 conservative majority.
Each side’s arguments
On Monday, the justices will limit 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 specifically 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.
The justices will hear two disputes. First, a coalition of abortion providers will argue that they 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 their argument is that the legislature cannot craft a law that’s insulated from review in federal courts, particularly when the state has delegated enforcement to the general public.
They say that while the state would be immune from such a lawsuit under normal circumstances, 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.
“The courthouse clerks and judges who are defendants in this action are unquestionably connected to the enforcement of this new law,” Marc Hearron, a lawyer for the Center for Reproductive Rights, told the court. “In addition, the state executive officials named as defendants cause distinct injuries” to the clinics “through threat of their indirect enforcement authority” under the law.
Hearron said the law amounts to a scheme to keep federal courts from reviewing it.
The second appeal concerns a lawsuit filed by the Department of Justice to block the law. Here, the justices will consider whether the United States has the legal authority to step in to sue the state.
In announcing the lawsuit in September, Attorney General Merrick Garland said the law is clearly unconstitutional and that it included an “unprecedented scheme” meant to make federal challenges almost impossible. Garland said deputizing private citizens to serve as “bounty hunters” amounted to an attempt to thwart judicial review.
He said the US has the authority to ensure that Texas cannot “deprive individuals of their constitutional rights” through such a “statutory scheme.” He emphasized that the law interferes with the ability of federal actors in the state to carry out their constitutional duties.
Still pending is a request from the Justice Department to freeze the law while the appeals process continues.
In the briefs filed Wednesday, acting Solicitor General Brian H. Fletcher echoed Garland, arguing that “Texas is not the first State to question Roe.”
“But rather than forthrightly defending its law and asking this Court to revisit its decisions, Texas crafted an ‘unprecedented’ structure to thwart judicial review,” he said.
In response to both disputes, Texas says neither case can proceed because the state is not the proper defendant since S.B. 8 bars state officials from enforcing the law.
Texas Solicitor General Judd E. Stone emphasized in briefs that neither case “presents a case or controversy” and that both challenges should be dismissed.
Targeting the Biden administration’s argument that federal law is supreme, Stone said the Constitution does not allow a “grant of federal power to sue whenever the United States wants.”
Texas says that while the law bars preenforcement challenges, lawsuits in state courts can go forward because private individuals are authorized to bring civil suits against anyone who has helped a woman obtain the procedure.
But critics note that such challenges will take time to work their way through the system and that in the meantime, most clinics in the state have stopped performing abortions because the law mandates draconian penalties against providers who violate it, including damages of at least $10,000 per procedure.
While both the providers and the Biden administration won challenges in federal district court, the conservative 5th US Circuit Court of Appeals reversed and allowed the law to remain in effect.
Friend of the court briefs
Liberal Justice Sonia Sotomayor has emerged as the most vocal critic of the law, and has been especially critical that her colleagues have so far allowed it to remain in effect. In her most recent dissent – last week, when the court allowed the law to stay on the books for the second time – she said that Texas, “empowered by this Court’s inaction,” has “thoroughly chilled the exercise of the right recognized in Roe.”
Sotomayor was the only justice to say that the court should have immediately blocked the law. Liberals Elena Kagan and Stephen Breyer may have held their fire because they were placated by the fact that the court scheduled arguments so quickly or because they believe conservative votes may still be in play.
Meanwhile, “friend of the court” legal briefs flowed into the court Wednesday as parties attempted to illustrate the broad impact of its potential ruling.
Massachusetts Attorney General Maura Healey is leading a coalition of 24 attorneys general siding with the abortion providers in the state. In their brief, Healey detailed how clinics in neighboring states are overwhelmed with patients from Texas. Healey warned the justices that if they were to greenlight the Texas law, other states could draft similar laws in areas such as gun rights, marriage equality and voting rights.
Healey told the court that the states recognize the “vital role” that judicial review plays in resolving tensions between a state’s policy preference and a constitutional right. “Where longstanding precedent clearly and unambiguously forecloses a particular policy as unconstitutional, a State cannot be permitted to disregard that precedent by passing an unconstitutional law and shielding it from judicial review,” Healey argued.
Indiana and 19 other Republican-led states filed a brief in support of Texas, arguing that the district court that ruled in favor of the Department of Justice “threatens to expose every State in the Union to a suit by the federal Executive Branch whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere.”
Although on Monday the justices will limit the dispute to procedural issues related to the law and not whether it violates court precedent, they will tackle the future of Roe v. Wade in a separate dispute in December. In that case, Mississippi is defending its 15-week ban and explicitly asking to overturn Roe.
Impact in Texas
In court papers, lawyers for the clinics have detailed the impact of the law on women in Texas.
In sworn declarations, abortion providers said the law has had a chilling effect because staff are “plagued by fear and instability” and “remain seriously concerned that even providing abortions in compliance with S.B. 8 will draw lawsuits from anti-abortion vigilantes or others seeking financial gain” under the law’s enforcement provision, which offers at least $10,000 in damages.
Providers in neighboring states said under oath that they have been overwhelmed with patients traveling from Texas seeking abortions. When Judge Robert Pitman of the US District Court for the Western District of Texas temporarily blocked the law earlier this month, he said that from the moment it went into effect, “women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”
And in a stark response to the Supreme Court, Pitman wrote: “That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”
The 5th US Circuit Court of Appeals, however, stayed Pitman’s ruling, allowing the law to go back into effect.