Pro life outreach in front of a Planned Parenthood location in San Antonio Texas in 2019. / B Merkle/Shutterstock

Washington, D.C. Newsroom, Nov 1, 2021 / 14:27 pm (CNA).

The U.S. Supreme Court spent nearly three hours Monday hearing arguments in a pair of cases challenging Texas’ new abortion ban. Now the justices must decide what action, if any, to take in response to a state law crafted expressly to ward off the court’s intervention.

The law, which went into effect Sept. 1, restricts most abortions after detection of a fetal heartbeat, which typically occurs about at about six weeks gestation. In a 5-4 decision issued Aug. 31, the court declined to block the law from taking effect, but last week it decided to consider the two challenges to the law on an expedited basis.

The two cases heard Monday —Whole Woman’s Health v. Jackson, and United States v. Texas — focus on the novel way the law is designed to be enforced: through private civil lawsuits, rather than by state officials.

The oral arguments in the cases took place exactly one month before the court hears Dobbs v. Jackson Women’s Health Organization, a potential landmark Mississippi case that poses a direct challenge to the 1973 Roe v. Wade decision that legalized abortion nationwide.

In contrast to the broad implications in Dobbs, the Texas challenges revolve mostly around procedural questions.

In Whole Woman’s Health, abortion providers want the court to issue an injunction blocking state clerks and judges from acting on civil cases filed against alleged violators of the state ban.

In the other case, the Biden administration is asking to be allowed to proceed with a federal lawsuit against Texas seeking to overturn the law, known as “S.B. 8” [for Senate Bill 8] and the Texas Heartbeat Act.

President Joe Biden, a Catholic, called the law “an unprecedented assault on a woman’s constitutional rights,” and promised a “whole-of-government” effort to maintain abortion in Texas.

Biden directed federal agencies, including the Justice Department, to review what actions could be taken “to ensure that women in Texas have access to safe and legal abortions as protected by Roe.”

It is not known how quickly the court will decide either on either challenge. Litigation in both cases would still have to take place in lower courts.

While the Eleventh Amendment provides states with sovereign immunity from federal lawsuits, a 1908 decision, Ex parte Young, established an exemption for instances where state officials are enforcing an unconstitutional state law. Much of Monday’s discussion centered on whether Ex parte Young applies to the Texas challenges.

“The combined effect is to transform the state courts from a forum for the protection of rights into a mechanism for nullifying them,” Marc A. Hearron, the attorney for abortion providers, told the justices.

“S.B. 8 is an abortion prohibition, but the issues before this court are far more sweeping,” he said. “To allow Texas’s scheme to stand would provide a roadmap for other states to abrogate any decision of this court with which they disagreed.”

The Texas law allows for awards of at least $10,000 for successful lawsuits against those who perform or “aid and abet” illegal abortions. Women seeking abortions cannot be sued under the law. Defendants can be sued by multiple parties for the same alleged violation.

Judd Stone II, the Texas Solicitor General, maintained the court has no grounds to enjoin state clerks and judges from docketing and hearing civil lawsuits pertaining to the law because their actions don’t constitute enforcement of the law.

However, several justices asked whether the private plaintiffs weren’t, in effect, acting as agents of the state. “Why wouldn’t these private individuals be considered private attorneys generals?” Justice Clarence Thomas asked. Stone insisted that the state had no relationship to or control over private plaintiffs.

Chief Justice John G. Roberts questioned Stone about the law’s awards for successful plaintiffs. Roberts wanted to know: What if the award was $1 million, instead of $10,000? Wouldn’t that have a significant chilling effect on potential defendants?

Stone acknowledged that it likely would, but he said under such a scenario the court still wouldn’t have grounds to issue pre-enforcement relief, as the law’s challengers are requesting. It would require an act of Congress, Stone said, to give the federal judiciary greater jurisdiction over such cases.

“It’s not a question of the federal courts being more open,” Roberts responded. “It’s a question of anybody having the capacity or ability to go to the federal court, because nobody is going to risk violating the statute, because they’ll be subject to suit for a million dollars.”

Later, Justice Elena Kagan pushed back on Stone’s argument that Congress would have to provide with the authority to intervene in such cases.

“I mean, isn’t the point of a right that you don’t have to ask Congress?” Kagan asked. “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?” 

Justices also questioned Jonathan Mitchell, the former Texas solicitor general credited as the chief architect of the state’s law. 

“If the state is designating, whether it’s ordinary citizens or the attorney general or … district attorneys, if it’s designating those people to act for it, why aren’t those people bound by any judgment that says, ‘State, what you’re doing is unconstitutional?’” Justice Sonia Sotomayor asked Mitchell.

“Each of them is acting under the directives of the state law,” Sotomayor said. “So why aren’t they acting like the state when they act?”

Mitchell argued that the state doesn’t control these private individuals. “The state has passed a law that gives them the option to sue, and then it has washed its hands of the matter,” he said. “So there is no joint participation with the state in their decision.”

On Aug. 31 Justices Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett voted not to block the Texas law from taking effect. Chief Justice Roberts and Justices Sotomayor, Kagan, and Stephen G. Breyer dissented.