Two conservative Supreme Court justices appear open to abortion providers being able to challenge Texas law

By Ariane de Vogue, CNN Supreme Court Reporter

Two key conservative justices seemed open to arguments from abortion providers that they should be able to challenge a Texas abortion six-week ban in federal court as the Supreme Court grappled with the issue for nearly three hours on Monday.

In a separate challenge, brought by the Department of Justice, however, several conservative justices did express some reservations about the breadth of the government’s arguments, with Chief Justice John Roberts calling the Biden administration’s argument “as broad as can be.”

Some justices, lead by Justice Elena Kagan, suggested that the court could allow the suit brought by abortion providers to go forward and refrain from having to take action on the more complicated Justice Department case.

Reading tea leaves at oral arguments, however, is a complicated endeavor.

Oral arguments were two months to the day that a 5-4 court allowed the law to go into effect, halting most abortions in the country’s second largest state, and flooding clinics in nearby states with patients from Texas.

Amid a nationwide firestorm, the Supreme Court agreed to fast-track two appeals brought by a coalition of abortion providers and the Biden administration, signaling that the justices understand the case to be one of the most urgent the court has considered under Roberts

Lawyers fighting the law called it blatantly unconstitutional and designed with the express intent to make challenges in federal court nearly impossible, therefore nullifying a woman’s constitutional right to an abortion.

“Texas designed SB 8 to thwart the supremacy of federal law in open defiance of our constitutional structure,” said Solicitor General Elizabeth Prolegar, arguing for the Justice Department. “States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the court’s decisions in their borders, and block the judicial review necessary to vindicate federal rights.”

SB 8, the law in question, bars abortions after the detection of a fetal heartbeat at around six weeks — 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.

After the justices allowed the law to go into effect on September 1, with Roberts joining the liberal justices in dissent, women in the state scrambled across state borders and lower-income women were left with few options. The law has no exception for rape or incest.

The justices’ new, more comprehensive look at the law comes as polls found that public opinion of the justices has reached a new low, and as progressive groups are pushing to add more members to the court in order to dilute the conservative majority.

RELATED: Stephen Breyer says now isn’t the time to lose faith in the Supreme Court

Each side’s arguments

On Monday, the justices limited 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 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.

Marc Hearron, a lawyer for a coalition of abortion providers, argued that the providers 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 the argument is that the state legislature cannot craft a law that’s insulated from review in federal courts, particularly when the state has delegated enforcement to the general public.

While the state would be immune from such a lawsuit under normal circumstances, Hearron will argue, 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,” Hearron said in court briefs last month. “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.

In response to both disputes, Texas says neither case can proceed because the state is not the proper defendant since SB 8 bars state officials from enforcing the law.

Texas Solicitor General Judd Stone emphasized 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 pre-enforcement 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.

Impact of the law thus far

Supporters and critics of the law weighed in with “friend of the court” legal briefs, attempting to illustrate the broad impact of a potential ruling.

Massachusetts Attorney General Maura Healey, a Democrat, leads 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.”

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