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Heartbeats and history

Erin Hawley | Making sense of yesterday’s abortion arguments at the Supreme Court


A sketch depicts Solicitor General Elizabeth Prelogar speaking before the Supreme Court on Nov. 1 Dana Verkouteren via Associated Press

Heartbeats and history

The defense of unborn life can take some strange twists and turns. Yesterday, the Supreme Court heard oral argument in a pair of cases over the controversial Texas “heartbeat law” restricting abortion. The Texas statute basically limits abortions after about six weeks and authorizes ordinary citizens to file suit against abortion providers. Enacted on Sept. 1, the legislation has successfully reduced abortions in Texas by about 50 percent. That is big news, and both sides in the abortion conflict know it.

Predictably, pro-abortion advocates immediately filed suit to enjoin the law, arguing that it is unconstitutional under Roe v. Wade and later Court decisions. Pro-abortion advocates claim that a state may not prohibit abortions before viability—around 22-24 weeks—and the point at which a baby can survive outside her mothers’ womb. The truth is that pro-abortion forces will oppose any limitation on abortion. The effectiveness of the Texas law put that new statute right at the center of the abortion rights movement’s target.

Back on Sept. 1, the Supreme Court denied abortion providers’ request for emergency relief from the law. The Court explained that the case presented complex procedural questions. Chief Justice Roberts, along with Justices Breyer, Kagan, and Sotomayor dissented. Yesterday should be seen as round two, and the question is whether five justices will now find that federal courts have the judicial power to issue an injunction preventing state courts from hearing lawsuits filed under the Texas Heartbeat Act.

Counsel for the abortion providers, Marc Hearron, argued that the Texas law is unconstitutional under Roe and that federal courts could prohibit state court judges, or at least county clerks, from operating under the law. The Texas solicitor general disagreed, arguing that federal courts cannot issue injunctive relief against state courts under Supreme Court precedent. The Texas official also argued that the abortion providers lack standing—the right to have their case heard before a federal court.

The justices also confronted the separate issue of whether the federal government might sue Texas. The United States argued that it had a free-floating “interest” in “maintaining the supremacy of federal law.” That would point to a nearly endless power of the federal government to challenge state laws.

Even the liberal justices did not see a way forward for the federal lawsuit. As Justice Stephen Breyer pointed out, the claim made by the Department of Justice is limitless. The Federal Government could always bring a case. As the Supreme Court has previously explained, however, the federal government has no “general right to review and veto state enactments before they go into effect.” Instead, it is for Congress to implement causes of action.

So, what’s really going on here? The position advanced by the Department of Justice would launch the federal judiciary into a never-ending process of undermining state laws. Their argument would turn the federal judiciary into a Council of Revision. During the Constitutional Convention, James Madison advocated for an advisory council with veto authority over federal legislation. The other framers rejected this authority out of hand. Yet, lawyers representing the Biden Administration went one better (actually worse), arguing for a federal judicial power to review state legislation. This turns Federalism, whereby the federal government has to respect the powers of the states, on its head.

What happens now? The actual ruling by the Supreme Court in this case might have little to do with abortion, at least directly. But lurking in the background is the tragic reality of Roe v. Wade. So long as Roe stands, any effort by a state to defend the unborn by restricting abortion will be met with constant court challenges. Will five justices put a stop to enforcement of the Texas law as it is appealed? That remains to be seen. But we can see clearly that the pressing question is how the Supreme Court will decide the case arising from Mississippi—a case that presents a clear and direct challenge to Roe v. Wade.

So long as Roe stands, states will be unable to protect the unborn.

Editor’s note: The author works for Alliance Defending Freedom, which has worked closely with the State of Mississippi throughout the defense of its law mentioned above, including overseeing the amicus coordination effort in support of the case before the Supreme Court.


Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and former law professor.

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