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Supreme Court Hearing Live Tracker: Arguments on Texas Abortion Law

ImageAssociate Justice Elena Kagan in the House Chamber in 2019.
Credit…Doug Mills/The New York Times

Justice Elena Kagan, who had voted to strike down restrictive abortion laws in earlier cases, pulled no punches in her dissent in September when the Supreme Court let the Texas law go into effect.

“Without full briefing or argument, and after less than 72 hours’ thought, this court greenlights the operation of Texas’s patently unconstitutional law banning most abortions,” she wrote. “The court thus rewards Texas’ scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the state’s behalf.”

“Because of this court’s ruling,” she wrote, “Texas law prohibits abortions for the vast majority of women who seek them — in clear, and indeed undisputed, conflict with Roe and Casey.”

In addition to criticizing the law, Justice Kagan had harsh words for the court’s willingness to decide momentous issues without full briefing and argument.

“Today’s ruling illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process,” she wrote.

“It has reviewed only the most cursory party submissions, and then only hastily,” she wrote. “And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

That critique doubtless played a role in the court’s decision to call for Monday’s arguments.

We’ve now entered a round of one-by-one questions from the justices, in order of seniority.

There’s a lot of discussion of Ex Parte Young, a 1908 case. It made an exception to sovereign immunity, permitting cases in federal court against state officials who are acting unconstitutionally. But the Supreme Court also said this mechanism could not be used to “restrain the state court from acting in any case brought before it either of a civil or criminal nature.”

Credit…Stefani Reynolds for The New York Times

President Donald J. Trump vowed to put justices on the Supreme Court who would overturn Roe v. Wade. Opponents of abortion rights were pleased with all three of his appointments — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — but they were particularly enthusiastic about Justice Barrett.

Justice Barrett, who was part of the majority that let the Texas law go into effect in September, replaced Justice Ruth Bader Ginsburg, who died last year and was a strong supporter of abortion rights. Justice Barrett, by contrast, signed a 2006 newspaper advertisement opposing “abortion on demand.”

In remarks to students at Notre Dame in 2013, as reported in a student newspaper, Judge Barrett said the core right to abortion established in Roe appeared secure.

“I think it is very unlikely at this point that the court is going to overturn Roe,” she said. “The fundamental element, that the woman has a right to choose abortion, will probably stand.”

In a law review article published that same year, she wrote that Roe may be entitled to less respect than some other precedents. “The public response to controversial cases like Roe,” she wrote, “reflects public rejection of the proposition that stare decisis” — Latin for “to stand by things decided” — “can declare a permanent victor in a divisive constitutional struggle.”

Credit…Ilana Panich-Linsman for The New York Times

Abortion clinics and providers challenging the Texas anti-abortion law will be represented before the Supreme Court on Monday by Marc Hearron, senior counsel for the Center for Reproductive Rights.

Mr. Hearron was previously senior counsel for Senator Dianne Feinstein, Democrat of California, on the Senate Judiciary Committee. He has ties to Texas, where he went to law school at Southern Methodist University in Dallas and clerked for Judge Carolyn Dineen King on the U.S. Court of Appeals for the Fifth Circuit and for Judge Sidney Fitzwater on the U.S. District Court for the Northern District of Texas.

He has also been a partner at the law firm Morrison & Foerster, where he worked on pro bono cases involving reproductive rights and L.G.B.T.Q. rights. The firm is one of the groups involved in the suit.

“This law has now been in effect for two months, denying people across Texas the right to exercise a constitutional right the Supreme Court has recognized for almost 50 years, and forcing them to travel hundreds of miles out of state, delaying their abortion care, which is a time-sensitive medical procedure,” Mr. Hearron said by phone on Sunday. He emphasized the effects of the law on lower-income women and women of color.

Mr. Hearron added that he did not expect the case he is bringing to focus on the right to abortion itself, but more on procedural and jurisdictional questions.

A unique issue in the Texas law, which effectively prohibits abortions after about six weeks of pregnancy, is its enforcement by the general public rather than state officials and law enforcement.

“It’s well past time for this law to be blocked,” Mr. Hearron said.

The Center for Reproductive Rights has offices around the world and in several U.S. cities, and is working with the A.C.L.U., Planned Parenthood, the Lawyering Project and Morrison & Foerster.

The Supreme Court has said that courts can enjoin people, not laws. The tricky question, given the Texas law’s novel structure, is whom to enjoin. Hearron’s answer: court clerks.

Justice Brett Kavanaugh emphasizes the novel issue the Supreme Court is grappling with: private enforcement in state courts.

Justice Amy Coney Barrett is now talking. Her appointment by then-President Trump just over a year ago, days before he lost the election, has transformed the court.

Chief Justice Roberts jumps in.

Credit…J. Scott Applewhite/Associated Press

The Texas law conflicts with major Supreme Court precedents on abortion rights, which bar states from banning abortion before a fetus is viable, meaning able to survive outside of the womb. That’s generally considered to be about 23 weeks.

The Supreme Court’s expanded conservative majority will soon revisit those rulings, having scheduled arguments in December in a case challenging a Mississippi law that bans most abortions after 15 weeks. But there is no dispute that the Texas law’s ban on most abortions after six weeks is incompatible with the constitutional rulings in place for now.

Specifically, in 1973’s landmark Roe v. Wade decision, the Supreme Court struck down most anti-abortion laws in the country, saying the Constitution included a right to privacy that encompassed a woman’s right to choose to have an abortion.

In 1992’s Planned Parenthood v. Casey, the court reaffirmed this holding while overhauling the standard for analyzing whether a state restriction on the procedure went too far: It must not impose an “undue burden” on a woman’s ability to get an abortion, meaning a restriction whose “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

Justice Samuel Alito probes whether people can file lawsuits against abortion providers/aiders and abetters even if the plaintiffs haven’t personally suffered any harm.

Justice Sonia Sotomayor jumps in, asking Hearron to enumerate the harms the law causes.

Credit…Evelyn Hockstein/Reuters

It is hard to challenge the Texas law because it was written in a novel way: It effectively deputizes private citizens to enforce it, and bans the state government from doing so.

The law empowers private citizens to file lawsuits against both abortion providers and anyone who “aids and abets” abortions, which could include clinic staff members or even people who drive women to clinics. If such a lawsuit succeeds, the plaintiff can win a $10,000 judgment plus legal fees, and the judge can impose an injunction barring the defendant from performing or aiding any additional abortions. If the lawsuit fails, the plaintiff does not have to pay the legal costs of the defendant.

This structure means there is no obvious and specific person who can be the defendant in a case challenging the law on its face. Typically, a legislature that wants to restrict abortion in some way writes a law that the state would enforce, such as by prosecuting doctors or rescinding their medical licenses. Abortion rights supporters can then challenge such laws by suing the officials who would be responsible for enforcing them, seeking court injunctions ordering those defendants not to enforce those laws.

With the Texas law, however, there is no obvious defendant or target of an injunction. In the parallel cases before the Supreme Court, a group of abortion providers and the Justice Department have tried instead to sue Texas judges, clerks, and other state officials. The central question for the Supreme Court on Monday is the technical legal issue of the legitimacy of that approach.

This is Marc Hearron, a lawyer for the Center for Reproductive Rights, arguing first on behalf of abortion providers. Here’s a bio.

Justice Clarence Thomas asked the first question. That has been his practice in almost every argument so far this term.

Marc A. Hearron, a lawyer for the abortion providers challenging the Texas law, is up first. Under the court’s procedures, he will have two minutes to speak without interruption from the justices. Then he will face questions for 30 minutes or more.

Credit…Samuel Corum for The New York Times

Elizabeth B. Prelogar, who was sworn in Friday as the nation’s 48th solicitor general, will represent the Justice Department in oral arguments on Senate Bill 8.

Confirmed by the Senate in a 53-to-36 vote, she is only the second Senate-confirmed woman to serve in the role after Justice Elana Kagan, for whom she clerked and who served as solicitor general in 2009 and 2010.

Ms. Prelogar, 41, earned a bachelor’s degree in English and Russian at Emory University, a master’s degree in creative writing at the University of St. Andrews in Scotland and a law degree at Harvard University. She was also a Fulbright scholar in St. Petersburg, Russia.

After law school she clerked for Attorney General Merrick B. Garland when he served as a federal appeals court judge, and for Justice Ruth Bader Ginsberg as well as for Justice Kagan.

Ms. Prelogar worked as a partner at the white shoe law firm Cooley LLP and as an assistant to the solicitor general during the Obama and Trump administrations. During that time, she worked for the special counsel, Robert S. Mueller III, as part of the team investigating Russian interference in the 2016 election.

She has argued before the Supreme Court nine times, including twice last year.

Welcome readers! I’m Charlie Savage, a legal policy reporter for The Times. We’re going to be covering the Supreme Court arguments in the novel Texas abortion statute case, which are now beginning.

Credit…Ilana Panich-Linsman for The New York Times

The Texas law, known as Senate Bill 8, bars abortions once “cardiac activity” can be detected in an embryo. Such activity consists of electrical pulses that can be picked up on ultrasound but are not yet true heartbeats, since heart valves form later in the process of embryonic development.

Cardiac activity is detectable about six weeks after conception. Critics say this law amounts to a near total ban on abortion in part because many women do not realize they are pregnant yet at that point. By the time women miss their periods, they are already about four weeks pregnant, and some women have irregular cycles or do not track their periods carefully enough to know the exact date their last ones started.

The law contains an exception, permitting abortions after cardiac activity is detected in cases of a medical emergency. But it makes no exceptions for cases of rape or incest.

The practical effect of the law has been a sharp drop in legal abortions in Texas — though figures for September do not show as sharp a drop as many experts had predicted.

Credit…Jay Janner/Austin American-Statesman, via Associated Press

Texas’ restrictive new abortion law was one of two proposals passed by the legislature earlier this year during what was among the most conservative sessions in the state’s history.

One proposal was a more common style of law promoted by anti-abortion activists — a so-called trigger law — that would ban all abortions but only go into effect if the Supreme Court overturned Roe v. Wade.

The other, known variously as Senate Bill 8 or the “heartbeat act,” is what the Supreme Court is considering on Monday. It bans abortion once cardiac activity is detected in the fetus, generally around six weeks, a threshold that runs afoul of the legal timetable laid out in Roe.

But the law was designed by a former solicitor general of Texas, Jonathan Mitchell, and sponsored by a conservative state senator, Bryan Hughes, to evade judicial review by relying only on private citizens for enforcement, a novel approach.

The approach was strongly backed by Texas Right to Life, an ultraconservative group that lobbied for the bill. The group saw the mechanism as a clever way to avoid oversight by courts that had stymied past anti-abortion legislation. “The enforcement mechanism will not be subject to judicial challenge or judicial concoctions,” Elizabeth Graham, the organization’s vice president, said in an interview in September. “Someone legislating from the bench can’t hold up the law from being enacted or taking effect.”

Even as abortion providers and many Texas lawyers raised concern about the measure’s unique structure, it did not attract much attention as it was debated earlier this year and passed into law. Six-week bans on abortion had failed in other states.

It came as a shock in Texas — as it did around the country — when the Supreme Court declined to intervene and stop the law from going into effect on Sept. 1.

Immediately, providers in Texas stopped providing abortions, forcing many women to seek procedures out of state. Data released on Friday shows that abortions in Texas have declined by half. The law did not eliminate abortion in the state, but has drastically reduced its availability.

The threat of legal action under the law — which allows for civil penalties of at least $10,000 in each case and provides no means for defendants to collect legal fees if they win — has been enough to curtail the procedure in the state.

While the law allows anyone in the country to sue, few have.

The first two suits known to have been filed against an abortion provider under the law came from out-of-state lawyers — one in Arkansas, the other in Illinois — who identified themselves as pro-choice.

In September, after Texas enacted the most restrictive abortion law in the nation, the number of legal abortions performed there dropped 50 percent from the same month in 2020, according to data released Friday by researchers at the University of Texas at Austin.

No prior Texas abortion restriction has been followed by a drop so steep.

But the decline has also been smaller than many experts predicted. The law bans abortions after cardiac activity can be detected, which is generally around six weeks — and before the ban, 84 percent of people seeking abortions in Texas were more than six weeks pregnant at their appointment, according to previous research from the same group, the Texas Policy Evaluation Project.

The decline in the number of legal abortions performed in Texas in September was 12 percentage points steeper than the decline in spring 2020, at the beginning of the pandemic, when Gov. Greg Abbott effectively banned most abortions for a month by postponing all procedures deemed not medically necessary. Clinic directors and outside scholars say the number will probably keep falling as long as the law remains in effect.

But a few factors seem to have led to more abortions than expected. Providers have more availability to see patients quickly because they are not providing abortions past about six weeks of pregnancy, and they have been working longer hours to try to care for as many patients as possible. Also, women who feared being unable to get an abortion might have sought care earlier than they otherwise would have.

Credit…Stefani Reynolds for The New York Times

The Supreme Court is scheduled to hear two hourlong arguments on Monday, though they will probably last longer. The arguments in both cases will consider whether and how the Texas law may be challenged.

The first argument, starting at 10 a.m., concerns a challenge to the law brought by abortion providers in Texas. In that case, Whole Woman’s Health v. Jackson, No. 21-463, the court has agreed to decide “whether a state can insulate from federal court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohi­bition through civil actions.”

Marc A. Hearron, a lawyer with the Center for Reproductive Rights, which represents the providers, will go first and will argue for about 30 minutes. He will be followed by Judd E. Stone II, Texas’s solicitor general, also for about 30 minutes. Mr. Hearron will then have a few minutes to respond to Mr. Stone.

The second argument, scheduled to start at 11 a.m., concerns the Biden administration’s separate challenge to the law, known as S.B. 8. In that case, United States v. Texas, No. 21-588, the court agreed to answer this question: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials or all private parties to prohibit S.B. 8 from being enforced?”

Elizabeth B. Prelogar, the U.S. solicitor general, will argue first, for about 30 minutes. She will be followed by Mr. Stone, making his second appearance of the day, for about 20 minutes. Jonathan F. Mitchell, an architect of the law representing people who say they want to be able to sue under it, has been allotted about 10 minutes. Mr. Prelogar will then have a few minutes for rebuttal.

Credit…Erin Schaff/The New York Times

Oral arguments are typically the first time the justices discuss a case, and their questions are often efforts to communicate with one another.

“Quite often the judges are debating among themselves and just using the lawyers as a backboard,” Chief Justice John G. Roberts Jr. has said. “One of the real challenges for lawyers is to get involved in that debate.”

In 2019, in an attempt to address the free-for-all that is the modern Supreme Court argument, the court granted lawyers two minutes of uninterrupted time at the start of their arguments, meaning that the lawyers in Monday’s arguments will get to sketch out their main points before they are bombarded by questions.

Starting in October, the court again revised the way it conducts arguments, adding a round of one-by-one questioning from the justices, in order of seniority, at the conclusion of each lawyer’s allotted time, which is generally 30 minutes.

Over the first nine arguments of the current term, the justices used that new procedure sparingly. That will almost surely change on Monday.

The court generally issues opinions about three months after the justices hear arguments. But there are two reasons to think the court may move more quickly in the Texas case.

First, it had put the case on an exceptionally fast track, scheduling arguments for just 10 days after it agreed to hear it. That alone suggests urgency. Second, when it granted review, the court said it said it would defer a decision on whether to temporarily block the law “pending oral argument,” suggesting that it might rule promptly on that question even as it considers the larger legal issues in the case.

Credit…Kenny Holston for The New York Times

The legal battle over Senate Bill 8 began the day after it took effect two months ago, when the Supreme Court declined to block it from coming into effect. The court had been asked to enjoin the law by abortion providers who argued that it violated the court’s 1973 Roe v. Wade ruling by banning abortions in Texas after about six weeks of pregnancy.

In a bitterly divided 5-to-4 ruling issued on Sept. 1, the majority said that while it was not ruling on the law’s constitutionality, the “complex and novel” structure of the statute made it difficult for federal courts to block.

The law deputizes private individuals to sue anyone who performs or “aids and abets” an abortion, an enforcement mechanism designed to make it impossible for lawsuits to be brought in federal court, where federal judges could rule on the law’s constitutionality.

Texas has argued that the mechanism means that abortion providers can violate the law, get sued and then let state courts rule on whether the law is constitutional — opening the door then to federal court challenge. In its September ruling, the Supreme Court seemed open to this reasoning. It said that its decision not to enjoin the law had “in no way” limited “other procedurally proper challenges to the Texas law, including in Texas state courts.”

Eight days after the Supreme Court rejected the request for emergency relief, the Justice Department sued Texas, arguing that S.B. 8 allowed the state to unconstitutionally ban abortion while making it impossible for the federal courts to bring the law under judicial review.

The department also asked the courts to prohibit enforcement of the Texas law until the courts finally ruled on the suit, a request that was granted at the district court level and then rejected by an appeals court panel and the Supreme Court.

Now the Supreme Court is set to hear arguments by the Justice Department and Texas abortion providers, but only to determine whether Texas can use the structure of S.B. 8 to insulate it from review in federal court. As in September, the justices will not consider the constitutionality of the law.

The Supreme Court is hearing arguments in challenges to a Texas law that has sharply curtailed abortions in the state.

The law, which went into effect on Sept. 1 after the court declined to block it in a bitterly divided 5-to-4 decision, was drafted to evade review in federal court, a goal the state has so far achieved. The law, which bans most abortions after about six weeks and includes no exceptions for pregnancies resulting from rape or incest, has caused clinics in the state to turn away most women seeking the procedure.

There is little question that the ban itself is unconstitutional under two key Supreme Court precedents, Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992. Those rulings prohibited states from barring abortions before fetal viability, or about 23 weeks.

The question for the justices is whether abortion providers and the Biden administration are entitled to challenge the law in federal court. Officials in Texas say the novel structure of the law, known as Senate Bill 8, forbids such challenges.

The law bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.

That makes it hard for challengers to know whom to sue, as lawsuits seeking to block laws as unconstitutional typically name as defendants the officials charged with enforcing them.

When the Supreme Court last considered the law, in response to an emergency application filed by abortion providers, a five-justice majority refused to block it in a one-paragraph, unsigned order issued just before midnight on Sept. 1.

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