WASHINGTON, DC - NOVEMBER 01: Security barricades stand outside the U.S. Supreme Court on Monday morning November 01, 2021 in Washington, DC. On Monday, the Supreme Court is hearing arguments in a challenge to the controversial Texas abortion law which bans abortions after 6 weeks. (Photo by Drew Angerer/Getty Images)

During oral arguments Monday, the majority of the United States Supreme Court justices appeared skeptical about a Texas restrictive abortion law. It created a private right of action that is “limitless” against abortion providers and other people who help with termination of pregnancies. This was after six weeks. The Texas Heartbeat Act, also known by its legislative name SB 8, allows anyone to sue abortion providers to recover damages for terminating a pregnancy when embryonic cardiac activity has been detected.

Based on the questions they asked, the left side of the court — Justices Stephen Breyer and Sonia Sotomayor — appeared ready to squash the law. Justices Brett Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts were also appointed to the court with the hope that they would limit or outlaw abortion access. Justice Clarence Thomas, Chief Justice John Roberts and Samuel Alito were also less enthusiastic about the law. Samuel Alito and Neil Gorsuch seemed to be inclined to let the law stand.

Arguments did not revolve around abortion; rather, justices focused on whether a state had the power to allow private parties to enforce a state policy goal that was contrary to current constitution law by using state courts in a way that escapes federal judicial oversight. Many justices seemed concerned about the Texas legal system as it was applied in this and other cases. Chief Justice Roberts asked, for example, if another state could permit a private party, to sue anyone who buys an AR-15 rifle worth $1 million — a policy goal that would upset conservatives. The court also considered whether the U.S. Government might intervene in this matter.

The total time for oral arguments was approximately three hours.

“In enacting Senate Bill 8 the Texas legislature not just deliberately prohibited the exercise a constitutional right recognized in this court, but it also did everything it could evade effective judiciar protection of that right at federal or state courts,” Marc A. Hearron, an attorney representing Whole Woman’s Health, stated. “Texas gave enforcement authority to anyone, anywhere, except its state officials. Ex Parte Young was the only plausible reason, which was central to the debate.

Hearron stated that the combined effect of the two is to transform state courts into a mechanism for nullifying rights rather than a forum for their protection.

Justice Thomas stated that Ex Parte Young prohibited federal courts’ injunctions against many state actors, namely judges, from enforcing SB8.

Hearron claimed that Ex Parte Young permitted federal courts to prohibit Texas court clerks docketing SB 8 lawsuits. It also, more generally, stood for the idea that federal courts could impose a shackle on state officials if necessary. This broad interpretation of precedent would oblige the Supreme Court to limit Young and alter it to suit the current issue – if it is inclined.

Justice Kavanaugh stated that SB 8 raises a “novel issue” which created significant legal “tension.”

Kavanaugh observed that “when state courts entertain private civil lawsuits, they enforce state law.” “Shelley V. Kraemer is the most famous landmark example of this. Can you please fill in the blanks and tell me how to think about Ex Parte Young in light of the way we currently conceptualize state court enforcement in private civil suits?

Kavanaugh’s initial questions, and sometimes Justice Kagan’s later questions, seemed to be aimed at determining which legal mechanism the court should use in order to repeal SB 8.

Many of the justices appeared disinclined in allowing an injunction against judges from entertaining SB 8 suits — because they were inclined view state judges as neutral arbiters.

Hearron stated, “The state has made clerks an integral role in this machinery that they have created to nullify Constitution right.” Hearron also pointed out the possibility of closing down the SB 8 lawsuits from the beginning.

Justice Breyer stated that SB 8 claims are “not an ordinary tort litigation” and gave six reasons why. (1) Anyone can sue regardless if they suffer direct harm. (2) The suits can be filed anywhere in Texas. (3) Old SB 8 lawsuits do not have a preclusive effect. This means that thousands of lawsuits can fail without any bar to filing new ones. (4) Attorney fees are transferred to the defendants. (5) There is a heavy financial penalty of at least $10,000 per abortion or more. (6) SB 8 limits defenses.

Breyer invited Hearron, who was not a plaintiff, to explain other reasons. Hearn stated that (7) damages are not tied to the amount suffered by the plaintiff and that (8) mandatory injunctions can be issued under SB 8 to violators who don’t cause direct harm to plaintiffs.

Justice Alito repeatedly asked about the legal options available to women who wish to sue abortion providers if regretting their decision to terminate their pregnancies. Alito was very conscious of this topic, despite the fact that it wasn’t the main issue of the day.

Justice Kagan also questioned the attorney for Whole Woman’s Health about what relief was appropriate. Hearron said that an injunction would be appropriate against the docketing by state clerks of the suits; he also requested an injunction to stop other state officials from having the ability to enforce SB 8 lawsuits.

Kagan lamented the “procedural morasss” created by the “extremely uncommon law.”

Kagan was also concerned about the specifics of how the court would behave — e.g. what it might say to the U.S. Court of Appeals, Fifth Circuit, and the district court if it rejects SB 8.

Justice Gorsuch suggested other laws such as gun control laws and pandemic-related restrictions on religious gatherings and defamation laws could also chill constitutional rights. These laws appeared to have similar effects to SB 8. Hearron claimed that SB 8 was not the same as other laws. Gorsuch admitted that Hearron had drawn a line which distinguished the matter from other laws.

Justice Kavanaugh suggested that Hearron’s brief reply focused more on clerks than his previous arguments. He questioned whether clerks were simply fulfilling a “ministerial obligation” and “not adjudicating any” and therefore were improper parties to an injunction. Hearron stated that clerks were the most appropriate parties to enjoin, given the facts.

Judd E. Stone II, Texas Solicitor General, argued that Congress and not the SCOTUS can increase access to lower district courts. Because the case did not involve the actions or executive branches of state governments — which are the usual suspects for federal court injunctions, he said that the federal courts could not even hear it.

Justice Thomas asked, “Why would you consider the SB 8 Plaintiffs private attorneys general?” Because there was no injury to the plaintiff, SB 8 lawsuits were different from traditional torts.

Stone said that the anti-abortion activists who filed SB 8 lawsuits were very similar to plaintiffs in cases claiming a “tort or outrage.”

Roberts focused on whether the “bounty’ dollar amount placed an undue burden upon a pregnant woman’s ability to obtain an abortion. Stone asked about a “billion dollar bounty” to force him to admit that the law imposed an illegal burden, even though executive branch agents weren’t enforcing its terms. He noted that most tort law does not allow for any venue to be opened in a given state.

Breyer attacked Stone by quoting Oliver Wendell Holmes Jr.’s famous address to Harvard Law School Association of New York. Breyer pointed out that Holmes was on Ex Parte Young’s court.

Holmes stated that Holmes did not believe the United States would end if they lost their power to declare an Act of Congress null. Holmes stated, “I think the Union would be in danger if we couldn’t make that declaration regarding the laws of the various States.”

Breyer tried to argue that Ex Parte Young shouldn’t be interpreted narrowly in order to prevent the Supreme Court debarring state judges from taking part in SB 8 actions. His point was much more expansive.

Justice Kagan was not delicate in her description SB 8.

She attempted to summarize the bill by saying that “some geniuses invented a way to evade both the commands of that decision and the commands that the broader principle states are not to nullify Federal Constitution rights” It was absurd to claim that the Supreme Court could not protect the constitutional interest because it had never seen a private enforcement bill that effected a constitutional right, she said.

Kavanaugh agreed with Kagan that there was a loophole here. This is especially true when it comes to Whole Woman’s Health’s ability to seek federal court review prior-enforcement of SB 8.

Kavanaugh was one of many justices to suggest that Ex Parte Young’s “principle” be extended, not necessarily the decision language. This would allow the federal courts to intervene in SB 8

Stone stated that the Supreme Court has already “disclaimed”, the power to do the things the abortion providers want.

Kavanaugh forced Stone to admit that a clerk in a court dockets a SB 8 lawsuit is guilty of a state action under the 14th Amendment. Stone tried to rebut this by saying that the clerks were not “committing a wrong.”

Justice Sotomayor voted to complain that every citizen was “deputized” in collecting the “bounty for a post-heartbeat abortion; Kavanaugh joined a growing number of justices that feared that other states would adopt similar measures, which would put a burden on Second Amendment rights and First Amendment rights. However, similar mechanisms to SB 8 would be available if the Supreme Court allows the regime to continue unchecked.

Stone tried to argue that Congress has already limited gunmakers’ liability and that any state-level private enforcement bans of Second Amendment rights on gunmakers would be challenged. However, Stone failed to mention the supremacy federal gun statutes.

Sotomayor quickly jumped in, stating that the whole point of a Constitution right was that Congress shouldn’t be asked to pass legislation to grant it. According to her, previous Supreme Court decisions required that constitutional rights were respected both “directly” (and “indirectly”) by the state governments.

Stone was told by Sotomayor that she could challenge the assumption but it would be futile. Sotomayor suggested that Stone assume the court would hold that the Texas “scheme” was meant to limit constitutional abortions.

Gorsuch suggested that Texas abortion providers should have sought to defend their rights before the Texas state courts. Justice Barrett immediately responded that “all these problems” would continue because there was an allegedly limitless number SB 8 cases that could be filed. Justice Barrett also stated that it was impossible to counter the defense that prior cases had been dismissed on constitutional grounds. This led to a lot of litigation and an expense that the providers of abortion said was too much.

Hearron responded briefly to the claim that SB 8 had an impact on all abortion centers, including front-desk operators. Hearron also stated that abortions were feared after six weeks as it allowed them to sue their attorneys. They would be left without legal counsel to defend themselves and could be held liable for $10,000 in damages.

The case turned then to whether the U.S. Department of Justice should have the right to intervene in the suit on the larger question of whether or not the DOJ had power to enforce federal supremacy using SB 8 to do so.

“Texas designed S.B. 8 to stop the supremacy federal law in open defiance our constitution structure,” stated newly appointed U.S. Solicitor General Elizabeth B. Prelogar. “States can ask the court to reconsider its constitution precedents. However, they cannot place themselves above the court or nullify court decisions within their borders and block the judicial review necessary for federal rights to be protected.”

Prelogar claimed that Texas would not pass, its clerks would not docket, and state officials would not enforce SB 8.