The U.S. Supreme Court heard oral arguments today, challenging a Texas Abortion Law, S.B.-8. In earlier coverage at Tatum Report, a federal judge, Robert Pitman, declined the DOJ’s request for an injunction.
In September, Judge Pitman ruled against the DOJ’s request saying, “[T]his case presents complex, important questions of law that merit a full opportunity for the parties to present their positions to the Court.” Today was their opportunity.
The University of Texas at Austin, Texas Policy Evaluation Project explains the law:
“This bill includes two key provisions: it bans abortion upon detection of fetal cardiac activity and allows almost anyone to sue abortion providers and others who ‘aid and abet’ a person obtaining abortion care.’ “
Essentially, the law says doctors cannot perform abortions if they detect a fetal heartbeat, which can be detected as early as five to six weeks.
According to a C-SPAN2 headline: “The Court will decide legality of a provision that enforces the law through lawsuits by private citizens rather than by the state.”
CBS News reported, during the three-hour hearing, “several justices expressed concern that a range of constitutional rights could be under threat if the court accepts the Texas law’s novel enforcement mechanism. The law deputizes private citizens, rather than state officials, to enforce the law through suits filed in state court, and critics of the measure argue that structure has insulated it from federal court review.”
However, Justice Samuel Alito asked Marc Hearron, Center for Reproductive Rights senior counsel, arguing for the plaintiffs, doesn’t the Texas Constitution show a plaintiff must show injury? You said, ‘anyone can sue.’ Is that accurate under Texas law?”
Despite this being one of the plaintiff’s main contentions, Hearron answered, “I think the answer is unclear.”
Justice Alito followed up, asking, “The Texas Supreme Court said they follow the same standard as a federal court? Haven’t they said that?”
Hearron conceded, “They said that recently….” But he suggests both state and federal courts have not yet addressed such a novel law as this one.
The issue for the plaintiff seems to be that the Texas law uses the state’s courts “as a tool” to subvert the U.S. Constitution. They also claim the law allows unlimited lawsuits to be filed by anyone throughout the entire state. They argue even if an abortion provider wins one case in court, with no “preclusive effect,” they are still liable for multiple additional suits, turning providers into permanent defendants.
The plaintiffs also argued this creates a “chilling effect,” according to the Washington Post (via MSN News), “by providing ‘bounties’ to private citizens to enforce it.”
Chief Justice John Roberts commented federal review should come at the end of the state process. Hearron said he’d typically agree but again argued the “novel” nature of S.B. 8.
Another looming abortion case about to come before the Court is Mississippi explicitly requesting it “overturn Roe,” the immensely controversial case that extrapolated a woman’s right to abortion that exists in the U.S. Constitution.
CBS News also reported 228 Republican lawmakers told the high court the Mississippi case provides it with “a chance to release its vise grip on abortion politics.”