Abortion Rights in the Balance as Supreme Court Hears Challenges to Texas Ban

The U.S. Supreme Court will hear oral arguments on Monday, November 1 in two challenges to a controversial Texas law that effectively bans all abortions after six weeks of pregnancy.

Senate Bill (S.B.) 8 will come before the court in an unusual expedited proceeding and the justices' decision could have major implications for abortion rights in the state and throughout the country.

The court declined to grant a stay of the law on September 1 by a vote of 5 to 4, with Chief Justice John Roberts joining the three liberal justices in dissenting from the majority.

Now the Court, which has a 6-3 conservative majority, will be asked to weigh in on the constitutionality of S.B. 8.

The two cases are Whole Woman's Health v. Jackson and United States v. Texas.

The court has declined a request from Texas' attorneys to consider overruling the landmark 1973 case Roe v. Wade, which established a constitutional right to abortion, and the subsequent case of Planned Parenthood v. Casey, which affirmed the Court's finding in Roe.

Nonetheless, if the Court rules that S.B. 8 can stand, it will have a major effect on abortion access in the U.S. with several states likely to introduce laws modeled on Texas's ban.

Novel Enforcement

A central issue in arguments on Monday will almost certainly be the novel enforcement mechanism employed by the law.

State officials play no role in enforcing S.B. 8. Rather, the law allows private individuals to sue people who perform abortions or someone who "aids and abets" a woman in getting an abortion.

The person who has the abortion cannot be sued but doctors, healthcare workers and even a person who drives a woman to an abortion clinic can be the subject of suits. Plaintiffs will be awarded at least $10,000 plus legal fees if they sue successfully and they do not need to have any connection to the woman or even live in the state.

Critics have said this enforcement mechanism is designed to make it difficult for courts to strike down the law. Acting Solicitor General Brian H. Fletcher made that argument in his brief on behalf of the federal government.

"S.B. 8 was designed to nullify this Court's precedents and to shield that nullification from judicial review," Fletcher wrote. "So far, it has worked: The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the court has recognized for half a century."

Fletcher wrote that S.B.8 was a "brazen attack on the supremacy of federal law because S.B. 8's unprecedented structure leaves the federal judiciary powerless to intervene."

Constitutional Rights

A group of abortion providers led by Whole Woman's Health are bringing their own challenge to the law, writing in their brief that, "Sanctioning Texas's cynical strategy here would invite S.B. 8-like limitations throughout the country.

"In the face of clear precedent establishing that a six-week ban is unconstitutional, Texas passed one anyway, and it did everything it could to insulate the ban from effective judicial review," the brief added.

Texas Attorney General Ken Paxton, a Republican, submitted a single brief in response to both suits. He argued that the federal government and abortion providers do not have the right to sue in this way.

Paxton said the correct way to challenge the law would be for an abortion provider to violate it, become subject to a lawsuit, and then provide constitutional and legal arguments as defenses in state court.

"The Constitution does not guarantee pre-enforcement review of state (or federal) laws in federal court," Paxton wrote. "And there is nothing unprecedented about vindicating constitutional rights as a state-court defendant. To the contrary, that is the normal path by which constitutional issues come to this Court."

Paxton's brief also reiterates that "no state executive official actually enforces SB 8" in another indication that the law's enforcement mechanism is likely to be a key issue in the Court's decision.

The Future of Roe

The justices will have the opportunity to ask questions of counsel on Monday and those questions will be closely watched for clues about their thinking.

As Chief Justice Roberts is no longer the crucial swing vote on a Court with five other conservatives, the views of associate justices like Clarence Thomas and Amy Coney Barrett will prove crucial.

Though the court is not directly considering Roe on Monday, the arguments could provide insights for an upcoming case on a 15-week abortion ban in Mississippi that directly challenges that precedent. The justices will hear arguments in that case, Dobbs v. Jackson Women's Health Organization, on December 1.