Not quite the main event

Outside the U.S. Supreme Court on Nov. 1, pro-life and pro-abortion protesters posed for journalists’ cameras. A pink-wigged woman dressed in black and wrapped in yellow caution tape held a sign saying, “CAUTION: BANS OFF OUR BODIES.” Behind her, pro-­lifers held red heart-shaped balloons and signs saying, “LET THEIR HEARTS BEAT.”

Inside, the court’s oral arguments took a different focus. The justices and attorneys spoke of a Texas heartbeat law’s effect on abortion access, but the main discussion centered on potential negative consequences of the law’s private enforcement mechanism and whether the plaintiffs in the two related cases before the court should be allowed to sue.

The arguments confirmed that the two cases are just a sideshow to December hearing arguments about a Mississippi pro-life law. But the arguments also revealed an unspoken assumption that pro-lifers hope to challenge: that the U.S. Constitution establishes a right to abortion. Some court watchers say a decision on the Texas case could come in as little as a month or two.

In opening arguments for the first case, a lawsuit filed by Texas abortion providers, the plaintiffs’ attorney argued Texas specifically constructed the heartbeat law to prevent federal courts from protecting “a constitutional right recognized by this court.” Attorney Marc Hearron said the state gave enforcement power to “literally any person anywhere except its own state officials.”

Allowing the Texas law to stand, Hearron said, would give states a way to work around other Supreme Court rulings such as Roe v. Wade.

Texas Solicitor General Judd Stone said a court injunction against the heartbeat law would be “a violation of the whole scheme of our government” because federal courts don’t issue injunctions against state laws themselves—they issue them against the officials enforcing the laws. In this case, that’s complicated since no government official actually enforces the Texas law.

Despite Stone’s argument, even some conservative justices seemed concerned about the law’s potential to be overturned in court. Justice Brett Kavanaugh raised the possibility of other laws targeting Second Amendment or free speech rights. Texas Right to Life legislative director John Seago said the justices seemed inclined to agree that the heartbeat law was crafted to avoid the scrutiny of the courts.

But Seago was more encouraged by how the justices seemed to react to the Biden administration’s arguments in the second case in which the federal government sued the state of Texas, saying the law is unconstitutional. U.S. Solicitor General Elizabeth Prelogar argued the state was fully responsible for the law and therefore for violating the U.S. Constitution and the Supreme Court’s past precedents.

Perhaps most telling, though, is what the justices did not discuss. The state of Texas had encouraged the justices to revisit Roe v. Wade, but the questions they addressed were primarily technical. “It was fascinating—fascinating argument,” said Clarke Forsythe from Americans United for Life. “But it did not discuss Roe v. Wade or Planned Parenthood v. Casey,” the cases that established the current Supreme Court precedent on abortion.

That’s why Forsythe maintained that the oral arguments were just a sideshow. He called Dobbs v. Jackson Women’s Health, the Mississippi case scheduled for Supreme Court argument on Dec. 1, “the main event.” Dobbs will directly address whether a woman has a right to abort her baby after 15 weeks of gestation.

But the court’s decision on the procedural questions may show whether or not Texas’ novel law “provides a practical pro-life strategy, either now or when Roe is overturned.”

Forsythe noted that the justices and the attorneys on Nov. 1 repeatedly referenced “constitutional rights,” as if assuming that the Constitution without question establishes a right to abortion. Yet during her confirmation hearing, Justice Amy Coney Barrett noted that all the questions she received about Roe implied it wasn’t settled law. Forsythe wondered whether some of the justices, primarily Clarence Thomas, would address that fundamental question in the upcoming decision on the Texas cases.

—with additional reporting from Esther Eaton in Washington