ANALYSIS
WASHINGTON (LifeSiteNews) — Oral arguments before the United States Supreme Court began Monday over a Texas law banning abortion once a heartbeat is detectable, with several observers expressing alarm that the court’s newest Republican justices appeared sympathetic to the abortion lobby’s legal claims.
The Texas Heartbeat Act requires abortionists to screen for a preborn baby’s heartbeat and prohibits abortion if a heartbeat can be heard (generally as early as six weeks), with exceptions only for medical emergencies. Its unique enforcement mechanism, which “exclusively” empowers private citizens to bring civil suits against abortionists instead of state prosecutions, has been credited for the Supreme Court’s prior September decision not to block it from taking effect.
The court heard two sets of arguments regarding the law, one concerning Texas abortionists’ challenge to its enforcement mechanism, and the other concerning the federal government’s challenge to the law. Neither case directly concerns the substance of the Texas Heartbeat Act, but whether the plaintiffs’ petitions seeking injunctions against the law have the standing to proceed.
One major sticking point was whether the courts could review the law at all in light of the fact that no enforcement action has yet occurred, and that its deterrence of abortions so far has been entirely due to the “chilling effect” on the abortion industry’s willingness to risk violating it.
Chief Justice John Roberts, a George W. Bush appointee, noted that it would take “a lot of fortitude to undertake the prohibited conduct” with sufficiently large financial penalties hanging over one’s head, yet “it is only by undertaking the prohibited conduct that you can get into federal court.”
But while Roberts’ apparent sympathy to the plaintiffs’ arguments was unsurprising in light of his record, the questioning by two of former President Donald Trump’s appointees, Justices Brett Kavanaugh and Amy Coney Barrett, raised more eyebrows.
One major sticking point was the 1908 Supreme Court precedent Ex parte Young, which SCOTUSblog’s Amy Howe explains “allow[s] lawsuits in federal courts against state officials to bar them from enforcing unconstitutional laws, but prohibit[s] injunctions against state courts.”
Kavanaugh argued that Young “sets out this principle that you can get pre-enforcement review in federal court against state enforcement of laws that are assertedly unconstitutional,” and while the heartbeat law exploits a “loophole” in that case, the rationale “would suggest extending the principle here” to allow the providers’ suit to go forward.”
At another point, Kavanaugh pursued a line of questioning that seemingly granted the false premise that abortion is a “constitutional right,” and asked whether upholding the law would set a precedent that could be used by “other states that disfavor other constitutional rights” to deny pre-enforcement review to infringements on speech, religion, or gun rights.
Texas Solicitor General Judd Stone answered that “in several of those circumstances individuals who are concerned that a lack of immediate pre-enforcement federal court access would cause them ruinous liability or otherwise suppress their ability to exercise those rights, have turned to Congress and succeeded.” But Kavanaugh responded that “for some of those examples” it “would be quite difficult to get legislation through Congress.”
Barrett, meanwhile, “repeatedly raised the question of whether the law prevents people from asserting their constitutional rights,” observes HuffPost’s Lydia O’Connor. “She also signaled concern over hundreds of people being able to sue over a single abortion, while judges could only rule one case at a time.”
Barrett also pondered whether someone “who was counseling someone to get an abortion” could be sued under the law, and then “could say, I have a First Amendment right to free speech, and so it would be unconstitutional.” Stone responded by noting that Subsection F of the law “says that nothing in this section shall in any way prohibit, limit, preclude a defendant from asserting that defendant’s personal constitutional rights as a defense.”
The questions of Trump’s first appointee, Justice Neil Gorsuch, seemed more open to Texas’ arguments. He pressed Marc Hearron, the attorney representing the abortionists, to recognize the fact that there are other accepted laws, such as defamation or gun-control measures, that “often have chilling effects on the exercise of constitutionally protected rights” yet “can only be challenged defensively.”
Howe summarizes the justices as less sympathetic to the Biden administration’s case, fearful the White House “was seeking broad power to bring lawsuits against states.”
“When we get another case down the road where it’s a different solicitor general who’s making this argument in a different case,” Roberts asked, “what are we going to be able to point to that says no, no, you can’t invoke that broad equity power, or you can’t say just because there’s a state statute that is enforced by private parties, which is a very common phenomenon, that you then get to … sue the states?”
Again, however, Kavanaugh expressed concern about another aspect of the Texas law, its provision allowing for retroactive lawsuits against violations that previously occurred during a period in which the law was temporarily blocked. “Does that play into the chilling effect argument?” Kavanaugh asked. “Millions and millions retroactively imposed even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken.”
Several observers across the political spectrum saw Monday’s developments as encouraging for the Texas abortion industry, at least regarding the first case:
Alito and Gorsuch are taking turns pressing Prelogar on the implications of the federal government's position. They are the only two justices whose comments this morning have consistently seemed to side strongly with Texas.
— SCOTUSblog (@SCOTUSblog) November 1, 2021
Correct, this doesn’t legally preclude Barrett from any ruling on the merits, either here or in Dobbs. But if you thought Roe/Casey were flagrant violations of the constitution, you wouldn’t be so worried about a procedural mechanism that prevents plaintiffs from enforcing them.
— Adrian Vermeule (@Vermeullarmine) November 1, 2021
After today, we can now say that two of the three Trump nominees to SCOTUS are—or at least strongly appear to be—unvarnished judicial supremacists. The third gave us Bostock.
Thus is the state of the “conservative legal movement.”
— Josh Hammer (@josh_hammer) November 1, 2021
Even National Review judicial analyst Ed Whelan, who endorsed the nominations of both Kavanaugh and Barrett, reacted to Monday’s hearings by marveling at “the extraordinary prospect that six justices will rule that the abortion providers … are somehow entitled to an injunction that would prevent state court clerks from accepting and filing complaints alleging violation of the Act … [n]ever mind that … such an injunction would deprive plaintiffs under the Act of their own due-process rights to petition state courts and argue that the Act can be constitutionally applied.”
The outcome of this case could be a forecast of how the nation’s highest court intends to rule in another abortion case the justices will begin hearing next month, concerning Mississippi’s ban on abortion at 15 weeks. That case is more likely to elicit direct reconsideration of abortion precedent, and as such is expected to be the most conclusive test yet as to just how pro-life the Supreme Court’s current majority truly is.
A decision to overturn Roe v. Wade would supercharge pro-life enthusiasm by instantly banning abortion in the handful of states with either pre-Roe bans or “trigger laws” still on the books, and by empowering state legislatures to directly end abortion. But a decision upholding or merely modifying Roe would likely have the opposite effect on pro-life morale, while also forcing activists to reevaluate their current political and legal strategies.