Bloomberg Law
Nov. 1, 2021, 3:01 PM

Justices Grapple With Courts’ Powers to Stop Texas Abortion Law

Greg Stohr
Greg Stohr
Bloomberg News

U.S. Supreme Court justices grappled with the power of the federal judiciary to block Texas’ ban on abortion after about six weeks of pregnancy as they kicked off a high-stakes argument that will shape the future of reproductive rights.

The justices are weighing whether abortion providers and the Justice Department can stop the law despite an unusual provision Texas included to try to insulate the measure from judicial review. Texas made the law enforceable only through private lawsuits so that courts wouldn’t have a clear-cut way to block it.

Chief Justice John Roberts questioned whether the Constitution lets federal courts consider the providers’ bid to sue the state judges who would handle any lawsuits. The Constitution limits federal courts to hearing “cases” and “controversies,” and Roberts said a judge wouldn’t necessarily be “adverse” to the providers, as required under the Supreme Court’s precedents interpreting that power.

“That seems to me to raise a real problem under the case or controversy requirement,” Roberts said to Marc Hearron, a lawyer with the Center for Reproductive Rights representing clinics and doctors challenging the law. The providers are also seeking to sue state court clerks who would be responsible for docketing lawsuits filed under the statute.

“It is easier to say that we are adverse to clerks,” Hearron said later, under questioning from Justice Brett Kavanaugh.

The justices are hearing more than two hours of argument Monday after taking up the case on an ultra-expedited schedule. They will turn their attention later in the session to lawyers for Texas, the Justice Department and people who say they plan to file suits against violators of the law. Early questions in an argument often don’t reflect the full breadth of a justice’s thinking.

Dozens of demonstrators on both sides of the issue gathered outside the Supreme Court ahead of the arguments. Opponents of the Texas law held signs reading “Bans off our bodies” and “Keep our clinics” while supporters held signs that said, “Let their hearts beat.”

The Supreme Court let the law take effect Sept. 1 on a 5-4 vote, even while acknowledging “serious questions” about its constitutionality. The majority said the providers failed to overcome “complex and novel antecedent procedural questions,” including the issue of how a court would block the law, something judges typically do by barring government officials from enforcing a measure.

The Texas law is by far the strictest abortion ban in effect in the U.S., outlawing the procedure far earlier in pregnancy than the Supreme Court has ever allowed. Under a 1992 Supreme Court precedent, states can’t impose significant restrictions on abortion until the fetus becomes viable, or capable of living outside the womb, a point sometime after the 20th week of pregnancy.

The statute bars abortion after fetal cardiac activity can be detected and puts infringing clinics at risk of being shut down. The law lets private parties sue a clinic or anyone who helps a woman get an abortion -- and collect a minimum of $10,000 in damages per procedure -- but doesn’t authorize government officials to sue alleged violators.

Texas says the Constitution doesn’t guarantee pre-enforcement review of laws in federal court. The state says those opposed to the law can make their constitutional arguments after being sued in state court for violating the measure.

The Justice Department and abortion providers say the state is using an unprecedented ploy to nullify the court’s abortion-rights precedents. The department says it has the right to vindicate the supremacy of federal law, including the Constitution.

The court will hear arguments next month on a Mississippi appeal that seeks to overturn Roe v. Wade, the 1973 ruling that said for the first time that abortion is a constitutional right. Mississippi is defending its ban on abortion after 15 weeks of pregnancy.

The Justice Department case is U.S. v. Texas, 21-588. The provider case is Whole Woman’s Health v. Jackson, 21-463.

--With assistance from David Yaffe-Bellany and Madi Alder.

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Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Peter Jeffrey

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