The Supreme Court took up two challenges Monday to the Texas "Heartbeat Act". Known as S.B. 8, the measure has brought most abortions to an abrupt halt in the Lone Star state.
The challenges to the law were brought by lawyers representing abortion rights advocates and the U.S. Justice Department. Both focused specifically on Texas lawmakers transferring enforcement of the law from state officials to private citizens.
"Texas delegated enforcement to literally any person anywhere except its own state officials. The only conceivable reason for doing so was to evade federal court review," said attorney Marc Hearron from the Center for Reproductive Rights.
Hearron, who represents abortion providers, argued that allowing the law to stand would provide a roadmap to nullify other constitutional rights.
Newly appointed U.S. Solicitor General Elizabeth Prelogar called it an attack on the authority of the high court. "States are free to ask this court to reconsider its constitutional precedence, but they are not free to place themselves above this court, nullify the courts' decisions in their borders, and block the judicial review necessary to vindicate federal rights," Prelogar said.
Justice Elena Kagan questioned what kind of relief the U.S. government and abortion providers were after.
"We would be requesting an injunction against the commencement or the docketing of lawsuits, against the clerks across the state of Texas, as well as injunctive relief against the state executive officials for their residual authority to enforce S.B. 8," said Hearron
Texas Solicitor General Judd Stone told justices that would be pointless. "Petitioners Article 3 Inequitable Problems began with what they really want, an injunction against S.B. 8, the law itself. They can't receive that because federal courts don't issue injunctions against laws, but against officials enforcing laws. No Texas executive official enforces S.B. 8 either, and so no Texas executive official may be enjoined," said Stone.
But Prelogar said an injunction against Texas itself would bind state judges.
"It's unprecedented," responded Justice Samuel Alito, "to enjoin a state judge from even hearing a case. When has that been done and how can that be justified. A judge is a neutral arbiter."
Justice Neil Gorsuch also questioned the attempt. "I'm asking you, counsel, are you aware of any other example of such an injunction ... in the history of the United States?"
Prelogar responded, "In the history of the United States, no state has done what Texas has done here."
Stone says the federal government cannot claim a sovereign interest in this case unless authorized by Congress.
Justice Kavanaugh questioned the Texas solicitor on the implications of this law on other constitutional rights. "It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights if this position is accepted here. The theory of the amicus brief here is that it can be easily replicated in other states that disfavor other constitutional rights," said Kavanaugh.
Stone noted that it's the job of Congress to step in to pass legislation protecting specific rights from being suppressed by this type of lawsuit.
Meanwhile, Texas Gov. Greg Abbott recently spoke with Focus on the Family about S.B. 8, saying the enforcement mechanism used has been used many times before.
"It's called a qui tam lawsuit, where it provides third parties enforcement power. It's used in Medicaid and Medicare claims. It's used in any type of false claims act against the federal government, and so it just imported into the enforcement mechanism a strategy that's been used for well over a century in the U.S.," Abbott said.
A ruling from the Supreme Court is expected before the end of the year.
This case does not challenge Roe v. Wade, but in December the Court hears a challenge to a Mississippi law that bans most abortions after 15 weeks. Attorneys for the state have explicitly asked the High Court to overturn Roe.
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