Constitutional law professor: SCOTUS "pretty blatant", will allow abortion clinics to challenge SB 8

Erin Schaff/The New York Times via AP, Pool

If Supreme Court Justice Brett Kavanaugh’s line of questioning during the court’s three hours of arguments on Texas’ fetal heartbeat law is any indication, at least one legal challenge will be allowed to move forward. The justices heard from attorneys for abortion providers, the federal government, and Texas during oral arguments.


To be clear, the hearing wasn’t to debate the constitutionality of the Texas fetal heartbeat law, known as SB 8. The debate wasn’t about abortion rights in general, either. The hearing was focused on procedural technicalities surrounding the law and the lawsuits challenging SB8. In other words, the hearing was to determine if two legal challenges can continue on – one from abortion providers and one from the Department of Justice.

SB 8 has been in effect for about two months, since September 1. The law is different than other fetal heartbeat laws because there is a component in it that allows private citizens to file lawsuits against abortion providers and anyone involved in the abortion. The law allows private citizens to call in tips on violations of the six weeks provision – abortions cannot be performed after the fetal heartbeat is detected, usually at the six-week mark in pregnancy. This includes, for example, a person who pays for the woman’s abortion or a person who drives the woman to the clinic, Fetal heartbeat laws have been brought down by courts in the past because the individual state filed a lawsuit. This law takes it out of the hands of the state to enforce the law and puts it in the hands of private citizens. Also, abortion providers argue the many women don’t realize they are pregnant until after six weeks.

The Supreme Court refused to stop SB 8 from going into effect on September 1. Two of the conservative justices who ruled against temporarily blocking SB 8 on September 1 now sound as though they are open to allowing the abortion clinic challenge to move forward, though this isn’t true of the lawsuit brought by DOJ. Justices Amy Coney Barrett and Brett Kavanaugh convinced one constitutional law professor at South Texas College of Law Houston, Josh Blackman of that. Normally, Blackman said, it is tricky to try to interpret the justices’ comments during oral arguments. This time was different. Kavanaugh, in particular, was pretty clear in how he will vote from his line of questioning.


Blackman thinks the vote will be 6-3 in favor of the abortion clinics while a law professor at the University of Texas thinks SCOTUS will rule in favor of the clinics but in a more narrow decision.

“This wasn’t cryptic. This was pretty blatant,” Blackman said. “I think the clinics are going to win by a 6-3 vote.”

Blackman said he was surprised by how strongly the justices favored the providers’ case in their comments Monday. He said he’s not sure exactly what their order will entail, but he’s confident the court will rule in their favor.

Elizabeth Sepper, a law professor at the University of Texas at Austin, agreed that the justices left strong hints on how they’ll rule.

“After this argument, the best prediction is we’ll probably get a relatively narrow ruling in favor of the abortion providers that will allow them to proceed in their suit,” Sepper said. She predicts the Supreme Court will allow court clerks to be ordered to stop docketing cases as a way to block the law.

I tend to agree with them. Kavanaugh was particularly strong in questioning if laws could be written to challenge other constitutional rights. (No, abortion isn’t in the Constitution but SCOTUS ruled that they are legal in 1973.) A lawyer for the abortion clinics, Marc Hearron, said the law is used to infringe upon constitutional rights. “It’s the rules that have been created by the Texas Legislature that turn courts into a weapon that can be used to nullify constitutional rights,” he said. He argued that state officials should be targeted in lawsuits, as well as private citizens who are acting on behalf of the state. Texas Solicitor General Judd Stone said the state is forbidden from enforcing the law.


Kavanaugh asked about other constitutional rights – could they be affected in the same way?

Much of the discussion Monday centered on how that enforcement mechanism could be replicated to cast a chilling effect over other rights protected by the Constitution: not just abortion rights, but also gun ownership, freedom of the press and same-sex marriage.

Kavanaugh pressed Texas on this point.

“We can assume that this will be across the board equally applicable as the Firearms Policy Coalition says to all constitutional rights?” he asked Stone. The Firearms Policy Coalition said in a filing in the abortion providers’ case that it denounced the way the law is enforced for fears it could infringe on “​​any other hotly debated constitutional right.”

Stone said yes. When pressed, he said copycat laws, even over other constitutional rights and with much loftier penalties, should be insulated from similar legal challenges.

Kavanaugh posed a hypothetical question to Stone: “Say everyone who sells an AR-15 is liable for a million dollars to any citizen. … Would that kind of law be exempt from pre-enforcement review in federal court?”

Stone answered it would, unless Congress modified federal courts’ jurisdiction to do so.

That is a point that opponents of SB 8 have made all along. If the Legislature can pass a law against abortion rights using a go-around on state officials, then what is to stop them from passing other such laws?


In the second case, the case brought by DOJ, it is likely that this lawsuit will not be allowed to move forward. The question is whether or not the federal government can directly sue Texas over SB 8. The Biden administration wants the Supreme Court to block the law until its legality is ruled on. The Biden administration is strongly pro-abortion so it wasn’t a surprise that it sued to stop SB 8. The question is whether or not the lawsuit is an overreach of the federal government’s power over states’ rights. Chief Justice John Roberts said that DOJ’s arguments are too broad. Justice Kagan suggested the court rule on the case brought by the abortion clinics and not on DOJ’s case. U.S. solicitor general Elizabeth Prelogar argued, “If Texas is correct that it can nullify this Court’s precedents … then no constitutional right is safe.”

Whether or not SCOTUS will conflate other rights, like Second Amendment rights, with restrictions placed into SB 8 remains to be seen. The court will likely rule quickly. When the three liberal justices voted in favor of temporarily blocking S.B. in September, Chief Justice Roberts joined them. If Kavanaugh and Amy Coney Barrett decide to side with them now, the court will have enough votes to temporarily block the law now. In the meantime, most abortion clinics have closed up, waiting for a ruling. Thousands of abortions have been prevented since September 1. As things stand, women determined to seek an abortion have to travel to a neighboring state.


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