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Supreme Court Hears Argument On Texas Fetal Heartbeat Law

Supreme Court Hears Argument On Texas Fetal Heartbeat Law

Two cases challenge law that bans abortion after a fetal heartbeat is detected, but leaves enforcement to private lawsuits.

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:

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Comments

We already know Amy and Kav will fail us

Really, I got extremely concerned when Feinstein drooled over Amy, Kav, he just doesn’t have the cajones, too afraid for his family probably, but these are the times that call for giants , not dwarfs

Well, I dunno G. From reading the majority verdict it sounded like the PEOPLE didnt exhaust all legal options before going to the SC?

They may just be saying that process must be followed?

Could be wrong though and I was wondering to myself how the 5 liberal Justices will vote? 😉

What is the constitutional issue at stake here? Is it a woman’s right to abort a fetus as this is her body and the state in any capacity should not intervene? Well then about these vax mandates…

    The constitutional issue for progressives is their undying belief in the mythical “right” to abortion (murder of the unborn) supposedly swimming around the constitution like the Loch Ness monster- people swear it’s there, yet it plainly doesn’t exist.

      AnAdultInDiapers in reply to stl. | November 1, 2021 at 4:27 pm

      I reserve the right to purge my body of parasites.

      If you think they’re viable human beings, you can have them. What you can’t do is dictate to me whether or not I can undertake protection of my own health.

      What’s your mythical right to that? Where is it protected under the constitution?

      The constitution allows me to bear arms to defend myself against tyrants that would seek to impose their views on my body. Now tell me, is that a progressive view?

        Remember, ALL black lives matter!!!

        A baby in the womb is a “parasite”? Then why did you engage in unprotected sexual activity that even “an adult in diapers” must have known could result in that “parasite” being in your body in the first place? If you’re so damned determined to protect your health, then why risk an unwanted pregnancy and engage in behavior that allows the “parasite” into your body? Are you really too stupid to know how to avoid pregnancy? An abortion presents much more potential danger to a woman’s health than using birth control does. Why aren’t you concerned about those risks to your health? Seems your concerns about protecting your health are highly selective and more than a little hypocritical.

          bhwms in reply to Observer. | November 2, 2021 at 12:43 pm

          It’s a “parasite” that you and another made several hundred decisions and overt actions leading up to him being created. Abortion as a “choice” is simply the failure to take responsibility for those decisions like adults. And yes, the government has the power to protect the lives and liberty of the people, according to Jefferson.

          AnAdultInDiapers in reply to Observer. | November 3, 2021 at 4:08 pm

          It’s so sweet that you think contraception is infallible.

Judges that do their own work can avoid the clerk dodge.

If TX is going to regulate or prohibit abortion, the state government should do it. That private right of action is the mother of all double-edged swords, and conservatives are nuts to support it.

    Concise in reply to RandomCrank. | November 1, 2021 at 10:11 pm

    Why shouldn’t conservatives support it? If a state wants to pass a bone-headed private right of action against gun owners let them try. I suggest it will be found unconstitutional in whatever forum it’s ultimately decided. That’s our federal system. 50 different states (or 53 depending on who you listen to) empowered to pass laws they see fit consistent with the constitution.

What;s the bleeping problem? Why not just concede that a state, hypothetically, could chose to pass a similar law targeted at gun owners. Then point out that it would likely be found substantively unconstitutional (assuming no other federal statutory bars), unlike the substance of the Texas law.

Prof. Jacobson

…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.

SNIP

…,the Justices will find that federal courts have the power to enjoin the law, likely by enjoining the clerks from filing and processing lawsuit.

Ok… good to know. TY…

2smartforlibs | November 5, 2021 at 4:30 pm

Yet not a single case for the NY baby killing bill.

Do court clerks actually read and analyze the contents of lawsuits? I thought they just reviewed them to ensure that they have the proper format structure, and check all the boxes. Lots of frivolous and baseless lawsuits are filed, but the court clerks don’t seem to be in any position to judge their merits or lack thereof, and probably lack the necessary skills and training to do so, so they leave that to the judge. Frankly, enjoining state court clerks or other employees of the the state court, and leaving the state judges out of it, when the judges are the ones that will actually make the legal decisions, is kind of chicken-shit if you ask me.

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