A Texas sideshow at the Supreme Court

Outside the U.S. Supreme Court this morning, 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.” Pro-life women yelled into megaphones, “Equality, nonviolence, and nondiscrimination.” In another tableau, two women in red dresses and white bonnets cowered theatrically in front of pro-life protesters in red shirts as a woman in jeans waved the new international pro-life flag in the background. “Can we get a baby model up here?” asked one pro-lifer.

As the demonstrators faced off outside, the court’s oral arguments—playing from a phone linked to a loudspeaker—took a very different focus. Inside the court, the justices and the attorneys present spoke of the heartbeat law’s effect on abortion access in Texas, 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 the upcoming December hearing about a pro-life law out of Mississippi. But they also revealed an unspoken assumption that pro-lifers hope to challenge: that the U.S. Constitution establishes a right to abortion.

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.” The law, he added, imposes rules that make it difficult for someone to challenge it in state court. It allows the possibility for limitless lawsuits against violators of the law and makes attorneys who would defend them subject to extensive court fees.

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. “At issue here is nothing less than the supremacy of federal law,” said Hearron.

A technical discussion of Supreme Court precedent ensued, with other questions about whether the law would allow abortion facilities, for example, to sue for financial damages in state courts. Justice Sonia Sotomayor was the first to mention the “chilling effect” of the law on abortion providers, who, according to Hearron, don’t have a good way even to challenge the law in the first place.

In his response on behalf of Texas, state Solicitor General Judd Stone said a court injunction against the heartbeat law would be “a violation of the whole scheme of our government.” He said federal courts don’t issue injunctions against state laws themselves but 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 of the conservative justices seemed concerned about the law’s potential to be overturned in court. Justice Brett Kavanaugh brought up the possibility for other laws, perhaps targeting Second Amendment or free speech rights, to also skirt review from federal judges before being enforced, with potentially unjust consequences. 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 that case, 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. According to Prelogar, the Department of Justice has standing to sue because of the way the law attacks the authority of the federal government. Not doing so, she said, could effectively give other states an open invitation to pass new legislation that violates other constitutional rights.

“We were really encouraged to see the court’s skepticism towards the right that the Department of Justice has to challenge a state law simply because they believe it’s unconstitutional,” said Seago. “And the justices ... appropriately noted the unprecedented nature of what the Department of Justice is attempting to do in this case.” For instance, the injunction the Department of Justice is seeking would effectively be an injunction against all private parties, since those are the parties who are able to sue under the law. Especially if the justices rule in favor of the abortion providers, they seem unlikely to uphold the Biden administration’s legal arguments.

Probably most telling, though, is what the justices did not discuss. In case documents filed in advance, the state of Texas had encouraged the justices to revisit Roe v. Wade, but the questions they took up on Monday were primarily technical. “I mean, for lawyers, it was like a legal feast,” said Clarke Forsythe from Americans United for Life, commenting on the three-hour hearing’s dense legal discussion. “It was fascinating—fascinating argument. 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 today were just a sideshow, focusing on technical issues of legal procedure. 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.

However, he added that how the court decides Monday’s 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 Monday 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.

The justices could rule within the next two months, although Forsythe suggested they might decide to wait until they issue a decision in Dobbs v. Jackson Women’s Health. Seago, though, expects a faster timeline. In light of the 10-day turnaround the Supreme Court gave when it scheduled Monday’s oral arguments, the justices seem eager to issue a ruling. “We would assume within the next month,” Seago said.

—with additional reporting from Esther Eaton in Washington