Supreme Court Hears Argument On Texas Fetal Heartbeat Law

Supreme Court Hears Argument On Texas Fetal Heartbeat Law

The U.S. Supreme Court is hearing oral argument today in two cases challenging the Texas fetal heartbeat law. The law bans abortion after a fetal heartbeat is detected, but leaves enforcement to private lawsuits. The lack of government enforcement power previously caused SCOTUS to refuse to hear the case.

See this post for background on how we got here, Texas Fetal Heartbeat Law Still Beats, Supreme Court Leaves In Place But Agrees To Expedited Review.

Audio of the argument is streamed on the Supreme Court website, and some news channels also are streaming the audio. A transcript will be published by SCOTUS later today. (Added – audio and transcript in Whole Women’s Health. and audio and transcript in U.S. v. Texas.)

Scotusblog has background and a preview:

Two months ago, Texas put in place the most restrictive abortion law since the Supreme Court decided Roe v. Wade in 1973. The law, which prohibits almost all abortions in the state, has dramatically reduced access to the procedure. On Monday, the court will hear arguments in two challenges to the law — and though the cases may determine whether the law can remain in effect, they appear unlikely to resolve the future of the constitutional right to abortion first recognized in Roe. The answer to that question may come in a separate abortion case, involving Mississippi, scheduled for argument on Dec. 1.

Nevertheless, the two Texas cases — Whole Woman’s Health v. Jackson and United States v. Texas — are among the highest-profile cases in a term packed with controversial issues. Attesting to their high stakes, the justices will consider them in an extraordinary posture. They agreed to hear both cases before the court of appeals has fully weighed in, and they ordered an accelerated schedule for briefing and arguments not seen since the 2000 election litigation in Bush v. Gore.

Four lawyers will argue on Monday. They include Elizabeth Prelogar, the newly confirmed solicitor general for the Biden administration, and Jonathan Mitchell, the chief architect of the Texas law under review.

REACTION

One thing not discussed during argument, whether the law violated federal abortion law. That specific issue wasn’t on the docket, rather the main issue was whether federal courts could enjoin state court clerks from accepting filings of lawsuits under the statute, since federal courts cannot enjoin state courts.

My quick take is that the Justices will find that federal courts have the power to enjoin the law, likely by enjoining the clerks from filing and processing lawsuit. It’s not that anything specific was said, but the entirety of the argument was that the law was designed to evade federal court review through the unique private enforcement mechanism while at the same time achieving the result as if the state were empowered to enforce the law. I think it will be close, but that’s my feeling.

BTW, Texas Solicitor General Judd Stone was superb in his argument — outclassed the other lawyers by a lot. Whether it makes a difference remains to be seen.

One reason for that feeling is that Kavanaugh worryied that a similar ploy could be used against other right, such as the Second Amendment, and he used the example of a state providing a private enforcement mechanism with a $1 million damage provision for anyone who sells an AR-15:

That's an enormous concession by Texas, because it undermines any argument that these procedural traps are somehow unique to the context of a restriction on abortions, and could apply to rights to which the conservative Justices are more sympathetic.

— Steve Vladeck (@steve_vladeck) November 1, 2021

Kagan, with more than a hint of sarcasm, says she doesn't buy the idea that SCOTUS can't intervene simply because "after, oh these many years, some geniuses came up with a way to evade the commands … that states are not to nullify federal constitutional rights."

— SCOTUSblog (@SCOTUSblog) November 1, 2021

Kavanaugh invokes Thomas' suggestion at the beginning of the argument that lawsuits against state judges may not be permitted under Ex parte Young. "For me, that's been a real sticking point."

— SCOTUSblog (@SCOTUSblog) November 1, 2021

Roberts is skeptical of Stone's answer to his million-dollar hypothetical. "Nobody is going to risk violating the statute" (in order to test its constitutionality) when they are subject to potentially ruinous civil damages. "That takes a lot of fortitude," Roberts says.

— SCOTUSblog (@SCOTUSblog) November 1, 2021

…Both Roberts and Kavanaugh noted the "shift" in the reply brief and counsel agreed that they were now focusing on the clerks for any injunctive relief. They earlier asked for declaratory judgment against judges.

— Jonathan Turley (@JonathanTurley) November 1, 2021

Gorsuch returns to the broad nature of the injunction the federal government is seeking. He says there's never been such an injunction "in the history of the United States." Prelogar replies: "In the history of the United States, no state has done what Texas has done here."

— SCOTUSblog (@SCOTUSblog) November 1, 2021

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