Justice Department and Texas officials clash over abortion ban ahead of Supreme Court showdown

Washington — As the Supreme Court prepares to hear oral arguments in a pair of cases over a Texas law that bans most abortions in the state, the Justice Department and abortion providers are warning that if the high court allows the measure's novel enforcement mechanism to stand, it will open the door for other states to pass their own laws targeting rights they disagree with.

"If Texas gets away with this ploy, the constitutional right to abortion will be the first but certainly not the last target of states unwilling to accept federal law with which they disagree," abortion providers told the Supreme Court in a brief filed as part of their dispute with Texas. 

The high court said last Friday it would take up both a legal battle brought against Texas and state officials by the Justice Department, as well as a separate dispute from Texas abortion providers. The ban, known as S.B. 8, will remain in place while the justices consider the case.

The Supreme Court scheduled oral arguments for November 1, a mere 10 days after the justices agreed to jump into the fight, which set in motion a lightning-fast schedule for the involved parties to file briefs in their respective cases further laying out their arguments.

The Texas law prohibits abortions after embryonic cardiac activity is detected, usually at about six weeks and often before a woman is aware that she is pregnant. The Justice Department and abortion providers argue the ban is unconstitutional, as the Supreme Court's precedents prohibit states from banning abortions before fetal viability, which generally occurs around 22 to 24 weeks of pregnancy.

But the justices will not decide the constitutionality of the Texas ban or whether to overturn its abortion precedents. Instead, the court will weigh procedural questions stemming from the enforcement mechanism laid out in the law.

Under the measure, private citizens, not state officials, are deputized to enforce the abortion ban through civil lawsuits filed in state courts against anyone allegedly performs an abortion in violation of the law, or "aids or abets" them. People who are successful in their lawsuits are entitled to at least $10,000 from the violator.

The enforcement scheme complicated efforts by abortion providers to block the law from taking effect September 1, as they did not know who to sue. But in their filing with the Supreme Court, lawyers for the clinics, represented by the Center for Reproductive Rights, said "federal-court review is necessary here to address ongoing, irreparable, and mass infringement of constitutional rights."

"Where, as here, a state enacts a blatantly unconstitutional statute, assigns enforcement authority to everyone in the world, and weaponizes the state judiciary to obstruct those courts' ability to protect constitutional rights, the federal courts must be available to provide relief," they said.

The provisions of the law, the providers further argued, "create a heads-I-win-tails-you-lose regime whose evident purpose is to deter and obstruct access to federal and state court."

Likewise, in its filing with the Supreme Court, the Justice Department accused Texas of crafting a law designed to thwart judicial review and argued every aspect of the ban's structure "manifests overt hostility to a defense based on the constitutional right to abortion."

"S.B. 8 was designed to nullify this court's precedents and to shield that nullification from judicial review," the Biden administration told the court. "So far, it has worked: The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the court has recognized for half a century." 

Acting Solicitor General Brian Fletcher warned that if the Supreme Court does not allow its suit to go forward, thus effectively allowing the law to evade federal court review, other decisions of the high court are at risk of being invalidated through similarly crafted measures.

"States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever constitutional rights they disfavor; disclaim enforcement by state officials; and delegate the state's enforcement authority to members of the general public by empowering and incentivizing them to bring a multitude of harassing actions threatening ruinous liability — or, at a minimum, prohibitive litigation costs," he wrote. "On Texas's telling, no one could sue to stop the resulting nullification of the Constitution."

The notion that other states could enact laws with an enforcement mechanism that models the Texas ban has already garnered concern from a gun rights group, which warned of possible infringements of the Second Amendment in a friend-of-the-court brief filed in the abortion providers' case.

"If Texas's scheme for postponing or evading review is successful here, it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights," the Firearms Policy Coalition warned. "New York is already experimenting with private enforcement of anti-gun laws raising significant Second Amendment issues and will no doubt gladly incorporate the lessons of this case to insulate its future efforts to suppress the right to keep and bear arms."

But Texas Attorney General Ken Paxton said both the Justice Department's and abortion providers' cases should be tossed out for lack of jurisdiction.

The federal government, Paxton argued in a filing with the justices, has not been harmed by the state of Texas "by the mere existence of an allegedly unconstitutional state law that may affect private parties," or by the law's alleged impact on federal programs.

State officials similarly argue abortion providers lack the legal standing to sue, as they filed their lawsuit against state officials "who cannot enforce SB 8." The clinics sued all state court judges who would adjudicate cases brought against alleged violators of the ban, as well as their clerks, who would accept the lawsuits filed by private citizens deputized with enforcing the law.

"At bottom, abortion providers may prefer litigating in federal courts to litigating in state courts under threat of significant financial penalties, but that preference is not constitutionally protected," Texas officials told the court in their filing.

Separate from the procedural issues raised in the cases, Paxton told the Supreme Court that the Texas law is constitutional, but noted the Supreme Court will likely have a say in the future on the constitutionality of the state's ban. The Justice Department's suit, he said, is not the vehicle to do so.

"A number of lawsuits have been filed under SB 8's private cause of action. A time will come — and no doubt soon — for the state courts to rule on the constitutionality of SB 8, and this court will, in turn, retain the last word on the correctness of their adjudication of federal law," he said. "But the United States does not get a free pass around long-settled federal-courts doctrines because it would prefer to litigate in a federal forum just a bit faster."

The abortion providers filed their challenge to the Texas abortion ban before it went into effect September 1 and asked the high court in late August to stop it from being enforced. But the justices, in a 5-4 decision, declined to do so, and the law remained in effect.

Then, days later, the Justice Department filed its suit against Texas and asked a federal district court to temporarily block enforcement of the law while legal proceedings continued. A U.S. district court judge in Austin put the law on hold, but his block remained in effect for roughly 48 hours before a panel of judges on the 5th U.S. Circuit Court of Appeals set aside the order, reinstating the abortion ban.

Abortion providers in Texas say they are complying with the law and are not providing abortions if embryonic cardiac activity is detected on a sonogram.