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Justices wrestle with Texas abortion ban

Marc Hearron, who argued abortion clinics’ case on behalf of the Center for Reproductive Rights, agreed that the statute is so tilted against abortion providers that it justifies federal courts stepping in to block the law.

“It’s the rules that have been created by the Texas Legislature that turn courts into a weapon that can be used to nullify constitutional rights,” Hearron complained.

The law — which has been in effect for about two months save for a handful of days when it was blocked by a lower federal court — allows private citizens to sue abortion providers or anyone who assists someone in obtaining an abortion, regardless of whether they live in Texas, know the patient terminating a pregnancy, or can prove any injury to themself from the procedure. There are no exemptions for cases of rape or incest.

People who successfully sue over an abortion in the state can win a minimum of $10,000, but those who successfully defend themselves from such a suit can claim no financial reward. And there can be limitless lawsuits filed in any Texas county over a single abortion, a factor Hearron referenced in Monday’s arguments as one reason the law creates an unconstitutional chilling effect.

“It turns the abortion provider into a permanent defendant,” Hearron said.

Several justices from across the ideological spectrum took issue, however, with the clinics’ attempt to sue Texas state court judges and clerks to stop them from hearing cases brought against abortion providers.

“You might appreciate that the idea of suing judges caught our attention,” Chief Justice John Roberts remarked dryly. “That seems to me to raise a real problem.”


Justices Stephen Breyer and Samuel Alito — who rarely agree — also raised potential objections to the clinics’ strategy. Breyer asked whether it could open the door to people suing judges in common tort suits, while Alito was skeptical that a judge merely hearing a case against an abortion provider makes them an agent of enforcing the state’s ban.

Hearron, the attorney arguing on behalf of abortion providers, also said allowing Texas’s law to remain in effect will allow states to ignore any federal law or constitutional protection they choose, from religious freedom to gun rights.

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“At issue here is nothing less than the supremacy of federal law. S.B. 8 is an abortion prohibition, but the issues before this court are far more sweeping,” he said. “Allowing the Texas scheme to stand will provide a road map for other states to abrogate any decision of this court with which they disagree.”

Before the session Monday, those opposed to the Texas law appeared to be fighting an uphill battle since the justices, voting 5-4, passed up a chance to block the statute from taking effect on Sept. 1. Chief Justice John Roberts joined the court’s liberals in voting to block the law, but the remainder of the court’s conservatives turned down the plea from abortion providers for an emergency injunction.

The arguments the justices heard Monday were prepared on an extraordinarily compressed schedule, coming just 10 days after the court agreed to take up the cases in-person. It’s the most accelerated timeline for a Supreme Court case that actually went to arguments since December 2000, when the justices heard arguments on the 2000 election results on two days notice and decided the case the following day.

Any ruling the high court issues based on Monday’s arguments may not be the final word on the Texas law.

Even if the justices turn aside both the challenges that are before them now, separate litigation stemming from a suit filed directly by someone seeking to enforce the Texas law and collect a money judgment from a person who facilitated what the law deems an illegal abortion could eventually reach the Supreme Court.

That kind of a case would likely face fewer of the procedural objections lawyers for Texas and anti-abortion activists are using to try to shoot down the current challenges. But it could also take months or more than a year to wend its way back to the Supreme Court.

In the meantime, the threat of financial liability would likely continue to dramatically curtail the availability of abortion in Texas — a scenario which the law’s authors have acknowledged is its very purpose.

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