Nov. 1, 2021, 11:59 a.m. ET
As a government lawyer, as an appeals court judge and on the Supreme Court, Justice Samuel A. Alito Jr. has consistently opposed legal protections for abortion. He was in the majority in September when the court refused to block the Texas law.
Applying for a promotion as a young lawyer in the Reagan administration in 1985, he wrote that he was proud to have helped advance “legal positions in which I personally believe very strongly.” One of those positions, he said, was that “the Constitution does not protect a right to an abortion.”
As an appeals court judge, he voted in 1991 to uphold a Pennsylvania law that required women seeking abortions to notify their husbands. “Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus,” he wrote. The U.S. Supreme Court rejected his position the next year in Planned Parenthood v. Casey.
In a combative speech at Notre Dame in September, he defended the Supreme Court’s decision not to block the Texas law, saying it turned on procedural issues and had nothing to do with the fate of Roe v. Wade.
Nov. 1, 2021, 11:57 a.m. ET
When the Supreme Court refused to block the Texas abortion law in September, Chief Justice John G. Roberts Jr. voted with the court’s three liberal members in dissent. That was in one sense a surprise: There is no reason to believe that the chief justice, a conservative appointed by President George W. Bush, is a committed supporter of abortion rights.
But he does view himself as the custodian of the court’s prestige and authority, and he has said that the court should not lightly overrule its precedents. Last year, he voted with what was then the court’s four-member liberal wing to strike down a restrictive Louisiana abortion law, saying a recent precedent — one from which he had dissented — required the result.
In his dissent in September, Chief Justice Roberts wrote that he would have blocked the Texas law while appeals moved forward.
“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”
Nov. 1, 2021, 11:56 a.m. ET
These arguments, which may be the first ones many Americans have heard, are a good look at how justices handle the most public part of their work. Their questions are varied, probing and sophisticated. And they are in large part talking to each other.
“We don’t talk about cases before the argument,” Chief Justice Roberts once said. “When we get out on the bench, it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.”
Nov. 1, 2021, 11:55 a.m. ET
The main sponsors of the Texas abortion law, State Senator Bryan Hughes and state Representative Shelby Slawson, both Republicans, are in Washington and are expected to speak outside the Supreme Court after the arguments conclude, along with the Texas attorney general, Ken Paxton.
Nov. 1, 2021, 11:42 a.m. ET
Why was there discussion of New York Times v. Sullivan, the landmark libel case? The point was that The Times faced crippling liability in state courts in southern states during the Civil Rights era. But the Sullivan case followed the usual pattern: the paper was sued in state court, lost and then appealed, winning in the Supreme Court. A lawyer for Texas said that was also the right way to challenge the Texas law – not by suing in federal court beforehand.
Nov. 1, 2021, 11:41 a.m. ET
At his confirmation hearings in 1991, Justice Clarence Thomas said, to the astonishment of many, that he had never discussed Roe v. Wade, the 1973 decision that established a constitutional right to abortion, even though it was issued while he was a student at Yale Law School.
The next year, he dissented in Planned Parenthood v. Casey, in which the majority reaffirmed the core of the Roe decision. Justice Thomas joined opinions saying Roe was “plainly wrong” and “should be overruled.”
In his memoir, he reconciled his 1992 vote with his statements at his confirmation hearings the year before. “By then,” he wrote, “I’d had ample time to study Roe in detail, and concluded that it was wrongly decided and should now be overruled.”
Justice Thomas, the longest serving member of the current Supreme Court, has in the intervening decades frequently voiced opposition to constitutional protection for abortion.
“Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother,” he wrote in a 2000 dissent. “Although a state may permit abortion, nothing in the Constitution dictates that a state must do so.”
He was in the majority in September when the court refused to block the Texas law.
Nov. 1, 2021, 11:41 a.m. ET
Prelogar tells Justice Thomas that the Justice Department is not suing because Texas enacted an unconstitutional law, but because Texas deliberately structured the law to prevent federal courts from doing anything about the fact that it violates the constitution. It’s a key distinction that Prelogar could use to show how other states could pass similar laws that undermine other constitutional rights.
Nov. 1, 2021, 11:40 a.m. ET
The basic contours of the Texas abortion law, S.B. 8, are well known: It bans abortions after cardiac activity is detectable, usually around six weeks’ gestation, and delegates enforcement responsibility to private citizens. But it contains many significant, and in some cases highly unusual, provisions beyond those basics.
I read the law in its entirety last month and consulted with two professors who have expertise in abortion jurisprudence: Mary Ziegler of Florida State University and Melissa Murray of New York University. Here are a few takeaways, though Professor Murray cautioned that parts of the law were written so vaguely that they “could reasonably be subject to a wide range of interpretations.”
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The burden of proof is reversed. Normally, the person making an allegation — the prosecution in a criminal trial or the plaintiff in a civil trial — must prove it is true. The defendant doesn’t have to prove it is false: innocent until proven guilty. Not so under S.B. 8, which says those accused of performing or abetting abortions have “the burden of proving an affirmative defense.”
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The law’s exception for medical emergencies is vague. Some health situations aren’t clear-cut, like a cancer patient who can’t receive chemotherapy while pregnant and whose disease could become untreatable within a few months. Doctors must decide whether their patient qualifies, knowing they could be sued by anyone who disagrees.
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People can be sued for intent even if they never act. The law doesn’t specify what counts as intent, leaving open the possibility that a person could be sued for, say, researching the locations of abortion clinics or viewing an advocacy group’s donation page.
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There are no geographic limitations. Residents of other states can sue someone who helps a Texan get an abortion (in fact, the first lawsuits filed under S.B. 8 were from out-of-state residents), and they can also be sued for helping a Texan get an abortion.
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The law puts financial burdens on defendants. A defendant who loses will have to reimburse the plaintiff’s legal fees. But courts are forbidden to order reimbursement of the defendant’s legal fees, meaning a person falsely accused would still be on the hook for the cost of their defense.
Nov. 1, 2021, 11:37 a.m. ET
Justice Stephen G. Breyer read back a list of six reasons that Marc A. Hearron, a lawyer with the Center for Reproductive Rights, which represents the providers, gave for why private lawsuits brought under S.B. 8 are unlike typical tort suits:
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Anybody can sue. (A reason that Justice Breyer called “debatable.”)
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Anyone can sue anywhere in Texas, a large state.
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A lawsuit brought under S.B. 8 does not stop other plaintiffs from suing the same defendant.
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The legal fees are serious.
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The $10,000 paid to successful plaintiffs is serious.
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Defendants have only a limited ability to argue that a lawsuit presents an undue burden.
Mr. Hearron agreed with the justice’s summary and added two more reasons:
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Damages awarded in successful lawsuits are not tied to the amount of the harm, as is the case in most tort suits.
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S.B. 8 provides for a mandatory injunction to prevent further violations of the law, rather than to prevent more harm to the plaintiff.
Nov. 1, 2021, 11:32 a.m. ET
Elizabeth Prelogar, the nation’s newly confirmed solicitor general, is now presenting arguments before the Supreme Court.
Nov. 1, 2021, 11:31 a.m. ET
The Biden administration’s newly confirmed solicitor general, Elizabeth B. Prelogar, is expected to argue that the Texas law conflicts with Supreme Court precedent and to urge the justices not to be deterred from saying so by the way it was drafted to avoid judicial review.
In the federal government’s brief submitted to the court, the acting solicitor general at the time, Brian H. Fletcher, wrote that “S.B. 8 was designed to nullify this court’s precedents and to shield that nullification from judicial review. So far, it has worked: The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the court has recognized for half a century.”
“Yet Texas insists,” Mr. Fletcher added, “that the court must tolerate the state’s brazen attack on the supremacy of federal law because S.B. 8’s unprecedented structure leaves the federal judiciary powerless to intervene.”
Nov. 1, 2021, 11:29 a.m. ET
The first argument, just concluded, was wide-ranging and pursued many themes, a lot of them quite technical. But there was some reason to think that Justices Brett Kavanaugh and Amy Coney Barrett have doubts about the way the Texas law was drafted – to avoid review in federal court. Both justices were part of the 5-to-4 majority that refused to block the law in September. If either one switches sides, the result could be different.
Nov. 1, 2021, 11:26 a.m. ET
Opinion among Texans of the restrictive new abortion law has been split. A survey from the University of Houston, conducted last month, found 55 percent of Texans who had an opinion of the law supported the legislation, while 45 percent did not.
Nov. 1, 2021, 11:15 a.m. ET
Anti-abortion groups are watching today’s hearing closely, even as they look ahead to Dec. 1, when the court hears arguments in Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that would undercut Roe v. Wade more directly. Students for Life of America said they had at least 30 demonstrators stationed outside the court today, with many holding signs reading “LET THEIR HEARTS BEAT.”
Nov. 1, 2021, 11:15 a.m. ET
In response to a question from Chief Justice Roberts, the Texas solicitor general says Texas courts and state officers will faithfully apply any decisions of the Supreme Court.
Nov. 1, 2021, 11:15 a.m. ET
Justice Sotomayor was dwelling on an unusual tort-law wrinkle: Under the enforcement mechanism of the Texas law, citizens are entitled to bounties — $10,000 judgments — just for filing a successful lawsuit, even if they are not personally harmed by anything the defendant has done.
Nov. 1, 2021, 11:13 a.m. ET
Justice Brett M. Kavanaugh, who voted with the majority in September to allow the Texas law to come into effect, may be the member of the court most open to switching sides on the issue. Though his voting record in abortion cases has consistently supported abortion restrictions, he has made occasional comments staking out more moderate positions than those of his colleagues.
In 2019, for instance, when the court temporarily blocked a Louisiana law restricting abortions, Justice Kavanaugh issued a dissent, taking a middle position that acknowledged the key precedent and that said he would have preferred to have more information on the precise effect of the law.
In 2017, when he was still a federal appeals court judge, he dissented from a decision allowing an undocumented teenager in federal custody to obtain an abortion, writing that the majority’s reasoning was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He said he would have given the government more time to find a sponsor for the teenager.
But Judge Kavanaugh did not join a separate dissent from Judge Karen LeCraft Henderson, who wrote that the teenager had no right to an abortion because she was not a citizen and had entered the country unlawfully.
Nov. 1, 2021, 11:12 a.m. ET
Justice Kavanaugh asks whether states could enact similar laws limiting other constitutional rights, like gun rights under the Second Amendment and free speech rights under the First Amendment. Stone responds that such laws could not be challenged in federal court, either.
Nov. 1, 2021, 11:09 a.m. ET
In the first stage of the arguments, Marc Hearron, a lawyer for the Center for Reproductive Rights, argued for about 40 minutes on behalf of abortion providers. Mr. Hearron argued that the Supreme Court should issue an injunction against Texas state court clerks, forbidding them from accepting lawsuits against abortion providers and those who aid and abet them.
He listed a litany of harms from the Texas law, which delegates to private parties the ability to enforce the law by filing lawsuits. He said that structure raised the prospect that it will chill a constitutional right by encouraging repetitive lawsuits that would put defendants at risk of $10,000 judgments plus attorney fees. The justices grappled with whether ordering clerks to bar such suits would be a proper use of the Supreme Court’s authority.
Justice Samuel Alito probed whether people can file lawsuits against abortion providers, and those who aid people seeking or carrying out abortions, even if the plaintiffs have not personally suffered any harm. There was 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.”
Nov. 1, 2021, 11:02 a.m. ET
Justice Brett Kavanaugh wonders whether the court should take action to close what he called a loophole in current doctrine that seems to forbid the abortion providers’ challenge.
Nov. 1, 2021, 10:55 a.m. ET
Judd Stone II, a former clerk to the conservative Supreme Court Justice Antonin Scalia, was named solicitor general of Texas earlier this year. On Monday, he will take on his most high-profile challenge to date: arguing before the Supreme Court on behalf of the state in two challenges to its new anti-abortion law.
Mr. Stone, who took his post in February, joined the state solicitor general’s office in 2020. He was appointed by Ken Paxton, the state attorney general. His predecessor, Kyle Hawkins, called Mr. Stone’s appellate advocacy skills “unmatched.” He oversees an office of attorneys who supervise and approve all appellate litigation for the state.
Before joining the office of the solicitor general, Mr. Stone was chief counsel for Senator Ted Cruz of Texas, himself a former Texas solicitor general.
Mr. Stone practiced law in Washington, D.C., at the Supreme Court and Appellate Practice Group for Morgan, Lewis, and Bockius, and the Kellogg, Hansen, Todd, Figel, and Frederick law firm. He was also an Olin-Searle-Smith fellow at Harvard Law School.
Before his career in private practice, Mr. Stone clerked for Mr. Scalia, for Judge Edith Jones on the U.S. Court of Appeals for the Fifth Circuit, and for Justice Daniel Winfree on the Alaska Supreme Court. He graduated from the University of Texas at Dallas and from Northwestern University Law School.
Mr. Hawkins, the previous solicitor general, announced his resignation in January. Notably, he had declined to join Mr. Paxton’s efforts to overturn the results of the 2020 presidential election.
Nov. 1, 2021, 10:50 a.m. ET
Chief Justice Roberts asks whether the law could be challenged if the bounty it offered were $1 million, not $10,000. Stone says that would still not allow a challenge in federal court.
Nov. 1, 2021, 10:48 a.m. ET
Justice Thomas once went a decade without asking a question from the bench. These days, he is an active participant in arguments.
Nov. 1, 2021, 10:47 a.m. ET
Judd E. Stone II, the solicitor general of Texas, is expected to argue that neither the federal government nor abortion providers are entitled to sue at this point to block the law. Instead, he will say, what should happen is that everyone should wait for a case in which somebody has sued an abortion clinic in state court, and then use that lawsuit to adjudicate whether the law is valid.
“The Constitution does not guarantee pre-enforcement review of state (or federal) laws in federal court,” Mr. Stone and other Texas officials argued in an earlier brief, adding: “A time will come — and no doubt soon — for the state courts to rule on the constitutionality of S.B. 8, and this court will, in turn, retain the last word on the correctness of their adjudication of federal law. But the United States does not get a free pass around long-settled federal-courts doctrines because it would prefer to litigate in a federal forum just a bit faster.”
Nov. 1, 2021, 10:45 a.m. ET
Hearron is wrapping up following about 40 minutes of arguments in which he urged the Supreme Court to bar Texas state clerks from docketing any lawsuits under the antiabortion law. The justices asked questions probing the unusual nature of the law, which delegates enforcement to private parties. Now up is the solicitor general of Texas, Judd Stone, who will argue that any action by the Supreme Court blocking this law at this stage would be improper.
Nov. 1, 2021, 10:41 a.m. ET
Justice Neil M. Gorsuch, who was appointed by President Donald J. Trump, was in the majority when the court refused to block the Texas law, and he dissented last year from a Supreme Court decision striking down a restrictive Louisiana abortion law.
But he has not written or said much publicly about whether the Constitution protects a right to abortion. There is good reason, though, to think he has given the topic a good deal of thought.
He is the author of a 2006 book called “The Future of Assisted Suicide and Euthanasia,” which explored those issues and glancingly addressed abortion.
“Human life is fundamentally and inherently valuable,” he wrote, adding that “the intentional taking of human life by private persons is always wrong.” This led him to support existing laws barring assisted suicide and euthanasia.
But that broad statement did not answer the question of whether a fetus is a human life in the sense that Justice Gorsuch meant, or where he stands on Roe v. Wade.
“Under Roe’s express holding,” Justice Gorsuch wrote, “a fetus does not qualify as a person.”
In a footnote, he described a contrary view from a 1986 dissent. Notably, it came from Justice Byron R. White, for whom Justice Gorsuch worked as a law clerk in 1993 and 1994. “The right to terminate a pregnancy differs from the right to use contraceptives because the former involves the death of a person while the latter does not,” Justice Gorsuch wrote, describing his old boss’s views.
Nov. 1, 2021, 10:40 a.m. ET
Justice Gorsuch compares the Texas antiabortion law to other laws that potentially chill the exercise of constitutional rights: defamation laws, gun control laws, and public health restrictions during the pandemic that affect the ability to attend a religious gathering.
Nov. 1, 2021, 10:36 a.m. ET
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.
Nov. 1, 2021, 10:31 a.m. ET
We’ve now entered a round of one-by-one questions from the justices, in order of seniority.
Nov. 1, 2021, 10:31 a.m. ET
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.”
Nov. 1, 2021, 10:30 a.m. ET
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.”
Nov. 1, 2021, 10:25 a.m. ET
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.
Nov. 1, 2021, 10:24 a.m. ET
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.
Nov. 1, 2021, 10:21 a.m. ET
Justice Brett Kavanaugh emphasizes the novel issue the Supreme Court is grappling with: private enforcement in state courts.
Nov. 1, 2021, 10:17 a.m. ET
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.
Nov. 1, 2021, 10:14 a.m. ET
Chief Justice Roberts jumps in.
Nov. 1, 2021, 10:13 a.m. ET
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.”
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