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Supreme Court justices seem to tilt toward abortion providers in Texas

Pro-abortion rights and anti-abortion activists rally outside the Supreme Court on Monday, as the justices heard arguments about Texas's controversial abortion law.
Pro-abortion rights and anti-abortion activists rally outside the Supreme Court on Monday, as the justices heard arguments about Texas's controversial abortion law.

Updated November 1, 2021 at 5:35 PM ET

The Supreme Court appeared inclined Monday to allow abortion providers to challenge a controversial Texas law that in effect bans all abortions after six weeks of pregnancy, which is before most women know they are pregnant.

But if the clues from the three-hour argument are correct, it's still unclear when the court will rule or whether it will temporarily block the law while the lower courts consider it.

This is the second time the novel Texas law has come before the court. Two months ago, a conservative court majority, in a midnight ruling, refused to block the law from going into effect. The result was that abortion in Texas came to a virtual halt, prompting a national firestorm.

On Monday, the court heard arguments not just from abortion providers, but from the federal government, which intervened in the case, contending that part of its job is to ensure that a state law does not nullify the Supreme Court's constitutional rulings.

The Biden administration's new solicitor general, Elizabeth Prelogar, told the justices, "If Texas is correct and it can nullify the court's precedents, then no constitutional right is safe." No state "has ever sought to challenge the supremacy of federal law and keep the courts out of the equation in quite the same way," she added.

But justices, both liberal and conservative, saw her argument as potentially giving the federal government unprecedented power to intervene in state policies.

"You say this case is very narrow, it's rare, it's particularly problematic, but the authority you assert to respond to it is as broad as can be," said Chief Justice John Roberts.

Part of the problem in the case is what Justice Elena Kagan referred to as the "procedural morass" the court has gotten itself into. Justice Stephen Breyer, one of the court's liberals, noted that "4 billion tort suits are filed in the United States, and probably 3 billion of them, somebody thinks something is unconstitutional." So, he asked, can they all sue to prevent the state courts from taking action? And why, asked Justice Samuel Alito, one of the court's conservatives, shouldn't these cases be litigated in the state courts first.

"It's unprecedented and it's contrary to our system of federalism to enjoin a state judge from even hearing a case," he said. "Your answer is a federal court judge can't enjoin another federal judge, but a federal judge can enjoin state judges because they're lower creatures."

But as much as the conservative members of the court appeared hostile to the federal government's intervention, three of them — including Trump appointees Amy Coney Barrett and Brett Kavanaugh, plus Roberts — indicated real doubts about the Texas law.

Kavanaugh asked Texas Solicitor General Judd Stone whether, if the court were to invalidate some of its abortion precedents in the future, the clinics in Texas would be liable for abortions in the past. Stone replied in the affirmative.

Kavanaugh looked incredulous.

That would mean they'd be liable for "millions and millions of dollars ... retroactively ... even though the activity was perfectly lawful ... at the time it was undertaken," he said.

Barrett also expressed skepticism about the breadth of the law and the way it was designed to prevent review by the federal courts.

The Texas solicitor general steadfastly maintained, however, that neither the federal government nor the abortion providers can seek review of the state law now. Rather, he maintained, the cases must first be litigated by the state courts, a process that could well take a year or more.

Kagan responded that if there is no immediate recourse when a state enacts a patently unconstitutional law, "essentially we would be inviting states, all 50 of them, with respect to their unpreferred constitutional rights, to try to nullify the law that this court has laid down," she said. "There's nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights — whatever you don't like, go ahead."

A decision in the case is expected by summer.

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