U.S. Supreme Court

The U.S. Supreme Court heard oral arguments on Texas near-total abortion ban on Nov. 1.

AUSTIN, Texas -- Nearly three hours of oral arguments over a pair of lawsuits seeking to halt Texas’ controversial and recently enacted abortion ban ended with U.S. Supreme Court justices appearing to lean in favor of allowing the cases to move forward.

Justices heard lawyers' arguments on two back-to-back cases Monday that seek to stop Texas Senate Bill 8, also referred to the “heartbeat bill.” Arguments focused on the constitutionality of the laws and each case’s legal viability, proving the court’s decision likely will have nationwide impact not only on abortion rights but also more broadly on the interplay between state laws and constitutional rights.

The Texas law bans abortions after cardiac activity is detected, usually around six weeks of pregnancy, before many women know they are pregnant. It also enables private citizens to sue anyone who performs an abortion or helps anyone receive one. The law — signed by Gov. Greg Abbott in May — went into effect Sept. 1.

Justices ruled 5-to-4 in September to allow SB 8 to take effect.

The court was not set Monday to discuss the constitutionality of abortions, that will likely come in December through the Dobbs v. Jackson Women's Health Organization case from Mississippi. Instead, justices may send the cases back to lower courts to be adjudicated.

Attorney Marc Hearron for Whole Woman’s Health said his client's case seeks to direct Texas clerks to no longer accept SB 8 litigation on their dockets.

“The combined effect [of SB 8] is to transform the state courts from a forum for the protection of rights into a mechanism for nullifying them,” Hearron said.

Hearron also argued that SB 8 and its combination of new rules — including enforcement powers granted to average residents and a bounty of $10,000 for successful lawsuits — forced a chilling effect which can already be seen as practiced abortions after 6 weeks in Texas have essentially ended.

“There's a combination of various ways that the state has created special rules applicable only to SB 8 to make state courts a tool that can be used to nullify constitutional rights that have been recognized by the court,” Hearron said.

Texas’ Solicitor General Judd Stone II, defending the new law, argued it's unconstitutional for the federal judiciary to prevent state judges hearing cases stemming from SB 8, citing Ex parte Young which prevents state officials from being sued in federal court.

During the hearing, justices wrestled with the idea of whether they should bar Texas courts from hearing SB 8 cases, particularly as arguments in both cases centered around the idea that either way the court rules would have rippling effects across the country.

The second case — United States v. Texas — argued that the State of Texas violated the supremacy of federal law, by skirting judicial review.

“I recognize that this seems like a novel case, and that's because it's a novel law,” said Federal Solicitor General Elizabeth Prelogar. “The United States has a manifest sovereign interest in suing to redress this violation … [and] to protect the supremacy of federal law against this attack.”

She argued that SB 8 is “a brazen attack on the coordinate branches of the federal government,” putting the court’s authority into jeopardy.

Lawyers representing the state argued that the federal government was overstepping its jurisdiction.

Texas Solicitor General Stone argued that the federal government is asking for “extraordinary power” if the remedy was to go its way, but one that should be dealt with in Congress as Texas has not violated any law, it only found a loophole.

“Texas does not suppress any substantive right by saying that it prefers to see certain kinds of challenges brought through the state court system,” Stone said.

The court's decision to fast-track appeals signals that the justices understand it to be among the most urgent cases and will likely return a decision soon, Florida International University Law Professor Howard M. Wasserman told CNHI News.

“I think they want to get this out of the way before [the Dobbs v. Jackson] case,” Wasserman said.

Wasserman added that he was surprised that many members of the court seemed receptive to the arguments presented by Whole Woman’s Health, indicating the case may move forward. He added that notes of skepticism toward the United States' case by Justices Clarence Thomas, Samuel Alito and Neil Gorsuch were unsurprising, but that he believes both cases likely will move forward with potentially great impact.

"Depending on how the court drafts its opinion, this could have potentially very broad effects on what litigation goes on in state court and when," Wasserman said.

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