During over 3 hours of oral arguments on Nov. 1,
They seemed less certain about whether the federal government — which is also challenging the law — was within its rights to sue Texas.
Senate Bill 8, which went into effect September 1, allows any private citizen to file suit anywhere in the state against anyone who performs, induces, or “aids or abets” an abortion. If successful in court, the plaintiff is entitled to at least $10,000 and does not have to pay attorneys’ fees; rather, defendants are required to pay all legal costs.
In September, most justices denied an emergency request to stop the law but agreed to quickly hear the challenges in person.
At the Nov. 1 hearing, it appeared that a few justices who had let the law stand — notably conservatives Amy Coney Barrett and Brett Kavanaugh — were now agreeing that its challengers, in particular the abortion provider Whole Woman’s Health, might have a legal basis to move forward.
“I think it’s pretty likely the Court is going to do something that allows ‘someone’s’ suit against SB 8 to go ahead,” tweeted Raffi Melkonian, a Houston attorney, after the hearing. “I don’t know when they’re going to do that.”
The Supreme Court usually issues its opinions months after arguments. Since these two challenges — Whole Woman’s Health v. Jackson and US v. Texas — were heard on a faster schedule, there’s speculation that a decision could also come quickly.
“The court clearly is in a hurry,” wrote Florida State University law professor Mary Ziegler before the hearing in a post on court-tracking site SCOTUSblog. She said the court seems to be taking the abortion issue as seriously as most Americans, and that the justices could rule before it hears oral arguments on December 1 in a Mississippi case directly challenging Roe v. Wade.
In addition, data shows abortions have been severely curtailed in Texas since the law took effect — by as much as 50% according to researchers at the University of Texas at Austin. They reported that 2,164 abortions were provided in September 2021, compared with 4,313 in September 2020.
“The actual provisions in this law have prevented every woman in Texas from exercising a constitutional right as declared by this court,” said Justice Elena Kagan, clarifying that it was every woman who had not made a decision by 6 weeks.
“Usually, in these chilling effect cases, we’re kind of guessing,” she said. “Here, we’re not guessing. We know exactly what has happened as a result of this law. It has chilled everybody on the ground.”
Judge Edward Stone II, an attorney with the Texas Attorney General’s Office who argued for the state, denied Justice Kagan’s assertion.
Nineteen medical organizations, including the American Medical Association, American College of Obstetricians and Gynecologists, American Academy of Family Physicians, American Academy of Pediatrics, and the American College of Physicians, filed a friend of the court brief supporting both challenges, saying the Texas law allows legislators to interfere with the patient–doctor relationship and that it limits treatment options.
Texas argued that the only way to challenge the law at the federal level would be to be sued first.
Marc A. Hearron, a lawyer with the Center for Reproductive Rights who argued for Whole Woman’s Health, said that was untenable.
“What my friends on the other side are saying is that clinics should just violate the law,” and “subject themselves to the risk that they will be forced to close their doors,” said Mr. Hearron.
But even if providers decide to violate the law, “they may not find physicians, nurses, ultrasound technicians, staff members willing to work behind the desk, because this law targets all of them,” he said.
Plus, clinics run the risk of becoming permanent defendants because the law does not prohibit multiple suits, he said.
Whole Woman’s Health asked the justices to stop the law by preventing the state’s clerks from filing cases.