Abortion Rights Still in Limbo in Texas

             Supreme Court justices met in conference on Friday (Nov. 5) and issued late in the day a routine orders list granting review in three more cases for the current term. They adjourned, however, without acting on more urgent business: what to do to restore the Court’s own authority over the state of Texas’s attempt to nullify the Court’s abortion rights precedents in the country’s second most populous state.

            The justices had divided 5-4 two months earlier in a shadow docket decision [Sept. 1] that allowed Texas’s ban on abortions after the sixth week of pregnancy to go into effect despite opinions from four of the justices pronouncing the law unconstitutional. In the meantime, women in Texas seeking abortions had to cross state lines into Oklahoma or Louisiana to vindicate the constitutional rights guaranteed to them under Supreme Court precedents.

            The justices expanded their review of the Texas law by agreeing to hear arguments in separate suits challenging the law: one brought by abortion providers, Whole Woman’s Health v. Jackson, and the other brought by the United States under the name United States v. Texas.

            Both suits had to contend with Texas’s unprecedented stratagem to avoid federal court review of the law. Texas’s never-before-tried ploy turned on denying the state any role in enforcing the ban on pre-viability abortions and turning enforcement over to private citizens through punitive civil suits against anyone aiding in an abortion illegal under the new law.

 The Court heard arguments in the two cases on Monday [Nov. 1]. The justices’ questions in the first of the cases indicated likely approval of the providers’ legal effort to nullify the law, formally titled the Heartbeat Act and commonly referred to by its bill number S.B. 8. The Justice Department filed its own suit in the United States’ name after the Fifth Circuit stayed the injunction that the abortion providers had won in their suit at the district court level.

The United States also won an injunction in its suit—specifically, enjoining court clerks from docketing private suits filed under S.B. 8 and enjoining private citizens who actually attempt to file such suits. The Fifth Circuit stayed that injunction as well, thus leaving the law in effect despite two lower court rulings finding it unconstitutional.

Representing the United States in the second argument on Monday, the newly confirmed solicitor general Elizabeth Prelogar boldly and unapologetically defended the procedurally unprecedented suit against the Texas law. The law, Prelogar declared, was a “brazen attack” on the Court itself and on Congress. “It's an attack on the authority of this Court to say what the law is and to have that judgment respected across the 50 states,” Prelogar  explained. “And it's an attack on Congress's determination that there should be access to pre-enforcement review in federal court to vindicate federal rights. The United States may sue to protect the supremacy of federal law against this attack.”

To justify the suit, Prelogar had to get around a century-old Supreme Court precedent known as Ex parte Young (1908) that protects states from being sued directly to overturn unconstitutional laws and instead requires such suits to name as defendant the state officials charged with enforcing the allegedly unconstitutional law.

One passage in that decision posed a particular obstacle to the remedy that the government sought in its suit. “[T]he federal court may enjoin an individual or a state officer from enforcing a state statute on account of its unconstitutionality,” the Court declared, “but it may not restrain the state court from acting in any case brought before it . . . .” An injunction to that effect, the Court added, “would violate the whole scheme of this Government.”

Prelogar drew challenging questions quickly from the trio of hard-line conservatives – Thomas, Alito, and Gorsuch – who all found various reasons for doubting the procedural posture of the United States’ suit. Thomas repeatedly demanded that Prelogar cite some precedent for the United States’ suit. Prelogar acknowledged she had no precedent to cite because there was no precedent for the scheme that Texas devised to prevent judicial review. “[B]ecause a state has never before crafted an enforcement scheme like this, there has not been the kind of situation that would prompt the United States to intervene in this manner,” she added.

In later reply to a supportive question from one of the Court’s liberal justices, Kagan, Prelogar defended the injunction that the district court had entered in the United States’ suit. “[T]he district court recognized that in these very unusual circumstances it was also appropriate to bind the clerks and the judges, who are being used as part of the machinery of this apparatus to impose the substantial chilling effect through the S.B. 8 enforcement actions,” she replied.

With her rebuttal, Prelogar closed by pleading the urgency of the case. She asked the Court to “affirm the preliminary injunction entered by the district court and immediately [emphasis added] vacate the stay that the Fifth Circuit entered in this case so that Texas cannot continue to deny women in its borders a right protected by this Court’s precedents one day longer.” Any immediate action seemed unlikely, however, after the Court decided to hear the two cases under normal procedures. So now, women in Texas must wait in legal limbo as the justices draft opinions and come to some decisions, probably weeks from now.