Texas’ abortion law has landed in the nation’s capital last week, as the U.S. Supreme Court weighs whether limitations on a woman’s ability to terminate her pregnancy are legal. Lawmakers heard from experts Thursday who urged the high court to strike it down.
The highly controversial new abortion law in Texas restricts abortions after six weeks of gestation.
The 1973 opinion in Roe v. Wade ruling put severe restrictions on the authority of any state to regulate abortion. If Texas wins in the Supreme Court, the ruling would overturn the precedent established by Roe v. Wade.
A ruling for Texas would not outlaw abortion, but it would eradicate recognition of the implied right to privacy and leave questions whether a woman can terminate a pregnancy to the states.
Abortion is safe and legal in all 50 states, but different states have different laws about when you can get an abortion there.
Without the ruling in Roe v. Wade, a handful of Bible Belt states would restrict abortion to varying degrees. Former Justice Louis Brandeis, appointed by then-Democratic President Woodrow Wilson, called this system “the laboratory of states.”
The arguments were not focused on abortion itself — the justices had actually declined Texas’ request to reconsider Roe v. Wade in that case — but on the unique enforcement mechanism that Texas had chosen: prohibiting state officials from enforcing the law while allowing any private citizen to sue an abortion doctor or person who “aids or abets” an abortion patient.
In the next month, the court will likely issue a ruling on two questions about Texas’ end-run around America’s constitutional right to abortion.
The Justice Department, which had never previously challenged an abortion restriction, will learn whether it can bring suits of this kind.
Abortion providers questioning the Texas bill will see if they can sue — or if states can use S.B. 8 as a blueprint for nullifying other constitutional rights.
Oral arguments this week certainly didn’t sound good for Texas, with several conservative justices, including Brett Kavanaugh, sounding skeptical. This could amount to something of a pyrrhic victory for abortion-rights advocates, however.
The court’s conservative majority may not like it when conservative states try to nullify abortion rights, but that doesn’t mean the conservative justices aren’t ready to take down Roe themselves. And they have a much better case coming up to do just that.
The questions being asked of the Texas bill may seem technical, but they have big implications: When can states pass unconstitutional laws and then stop the federal courts from doing anything about it?
The answer will likely turn mostly on what the court makes of a case from the early 20th century called Ex Parte Young.
There are limits on when someone can directly sue a state in federal court. Ex Parte Young carved out an exception: Individuals could get an injunction against state officials enforcing potentially unconstitutional laws. Texas claims to have a workaround to Ex Parte Young: Because it prohibited officials from enforcing the law, Texas is claiming no one can sue to stop them.
A majority of the justices seemed worried about Texas’ nullification argument. But they also seemed concerned about the long-term consequences of siding with the Justice Department.
Even Chief Justice John Roberts, who voted to block S.B. 8 from going into effect, asked U.S. Solicitor General Elizabeth Prelogar if there were any limits to the power to challenge unconstitutional laws.
Even so, at most, Texas seemed to have three justices — Clarence Thomas, Neil Gorsuch and Samuel Alito — clearly on its side in both cases.
All three justices dropped hints about what they thought of abortion rights, too. Gorsuch suggested providers were unfairly requesting “special treatment” for abortion rights. Alito asked a question about whether S.B. 8 would give women victimized by abortion a day in court.