On Monday morning, the Supreme Court returns to the bench for its next public sitting. The hearings that day will be among the most important of the Court’s current term: both are about legal remedies for violating a woman’s constitutional right to abortion. Each hearing is scheduled for one hour, but they are likely to run longer because of the complexity of the issues. The “live” broadcast of the audio (not the video) can be heard at Quick Links on the Court’s home page – supreme court.gov – and at c-span.org/supremecourt and C-Span Now App.
First case: Whole Woman’s Heath v. Jackson (The hearing starts at 10 a.m.)
Second case: United States v. Texas (The hearing will begin shortly after the first case has been heard, probably not before 11:30 a.m.)
Background: The 18th Century English jurist, Sir William Blackstone, famously wrote this passage: “It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy.” America’s greatest Chief Justice, John Marshall, used that quotation in the 1803 decision in Marbury v. Madison, claiming for the federal courts the power to strike down laws that conflict with the Constitution.
It is that “indisputable rule” that is at stake in the two hearings the Supreme Court has scheduled for tomorrow. Both cases involve the law passed last May by the Texas state legislature to forbid almost all abortions after about six weeks of pregnancy. The law is known as “Senate Bill 8,” and is formally titled “Texas Heartbeat Act.”
When an embryo is developing in a pregnant woman’s body, electrical activity can be detected at about six weeks. That activity, the Texas legislature decided, is to be treated legally as the embryo’s heartbeat (a point that is in some dispute medically).
After that point, the law intends to ban abortions in the state. Private citizens are deputized to enforce the law in place of state officials, with the power to sue – but only in state court – a clinic, doctor or anyone who aids in planning or carrying out an abortion beyond the six-week point. If the private enforcer wins the court case, he or she is entitled to collect a minimum of $10,000 from the clinic or doctor or any person aiding them.
The state ban makes no exception for a pregnancy resulting from rape or incest. There is only a narrow “medical emergency” exception, and the legal defense available in state court to a clinic or doctor is far narrower than the Supreme Court has ever allowed. (The women involved cannot be sued.)
No one seriously attempts to argue that the law is constitutional, so long as Supreme Court precedents continue to stand. Since the Supreme Court’s first abortion decision, Roe v. Wade, in 1973, states have been constitutionally prohibited from banning abortion prior to “fetal viability.” That is the point, at about 22 to 24 weeks of pregnancy, that a fetus has developed enough to survive if delivered.
In neither of the two hearings Monday, however, will the Court be weighing directly the constitutionality of the Texas law. (Attempts to persuade the Court to use the Texas controversy to overturn Roe v. Wade and later decisions were not acted upon when the Justices voted to hear the cases coming up Monday. However, the future of the Court’s precedents will be an issue discussed when the Court hears a separate abortion case, from Mississippi, on December 1.)
The cases tomorrow harken back to Blackstone and Marshall: what is the remedy if the Texas law causes injury to a constitutional right?
At issue in the first case is whether abortion clinics and doctors can be denied the right to challenge Senate Bill 8 in federal court, where they sought to sue state officials and private enforcers of the law to stop its enforcement.
At issue in the second case, taken to the Court by the Biden Administration’s Justice Department, is whether the federal government has the power to challenge state officials and private individuals in federal court, with the aim of blocking enforcement of the state law.
The state law has been in effect since September 1, when the Supreme Court refused by a 5-to-4 vote to temporarily bar enforcement. As a result, very few abortions are now being performed in the state, and many Texas women are traveling to clinics in other states. Whether to allow the law’s continued enforcement, while the Court’s review unfolds, will be a separate question the Court will consider at Monday’s hearings.
Significance: These cases only superficially involve procedural disputes over who can sue Texas, and when and how. They actually will take the Supreme Court back to the original Constitution in two important ways.
First, they test the meaning of Article III, which limits federal courts to deciding genuine, not abstract, legal disputes; and, second, they test the meaning of Article VI, which declares the Constitution “the supreme law of the land,” binding on states and taking away much of the independence they had as states under the Articles of Confederation (1781-1789).
For most of the 48-year history of abortion as a constitutional right, state laws were challenged in federal court, with women or their doctors or clinics suing state officials to forbid enforcement of new restrictions. That process has frequently led to federal court rulings striking down the laws – often, before the laws took effect — because they were found to conflict with Roe v. Wade or later precedents.
The Texas legislature wanted to find a way to “box out” the federal courts, as one supporter of Senate Bill 8 put it. So, instead of the usual mode of enforcing a state law by state officials, exposing them to federal court lawsuits, the legislature gave private individuals the right to enforce the law through lawsuits in state courts of their choosing.
By taking the state out of enforcement, such lawsuits wind up being between only private parties, contesting the law in a state court potentially favorable to the individual who sued, and with the procedures arranged to benefit that side of the case.
The idea for that approach originated with a conservative Texas lawyer, Jonathan F. Mitchell, now practicing law in Austin. He previously had been the state of Texas’s top courtroom lawyer, a law professor and a law clerk to the late Justice Antonin Scalia.
In a 2018 article in the Virginia Law Review, Mitchell argued that a private-enforcement law would take longer to develop – thus leaving a challenged law in place longer – because it would await a private individual willing to sue. And, even if the law might be found invalid in one case, that would not bind other individuals suing in other courts, keeping the law on the books even longer. With no state official involved in enforcement, there would be no target for a federal court order to forbid official enforcement.
A key part of Mitchell’s theory is the rather audacious argument that, if a law is ruled unconstitutional, that does not erase or void the law but only prevents the enforce in that particular case from continuing the enforcement. That is a notion that, in fact, was rejected as long ago as Chief Justice Marshall’s 1803 opinion in Marbury v. Madison, and by the Supreme Court in a 1968 school desegregation decision, declaring that Supreme Court decisions make up part of the “supreme law of the land” under Article VI.
The Whole Woman’s Health case
Scheduled for the first hearing tomorrow, this is a test of the law’s private-enforcement mechanism, and of the underlying theory of Jonathan Mitchell that the federal courts have no role when a state law is being privately enforced. (Mitchell himself represents some of the supporters of the Texas law who have filed legal briefs in the Supreme Court.)
The clinics and doctors sought to challenge Senate Bill 8 in lower federal courts, suing state officials and several private individuals who had indicated they might file private enforcement lawsuits against the providers.
The clinics and doctors do have a case pending now in a federal appeals court, but they persuaded the Supreme Court to grant expedited review of their challenge without waiting for the appeals court to rule. The abortion providers’ basic argument is that it is unconstitutional for a state to pass a law that violates an established federal right – here, the right to an abortion – and then seek to prevent it from being challenged in federal court.
The federal government’s case
Set for the second hearing tomorrow, this, too, is a challenge to the Texas law’s private-enforcement scheme, but it raises different issues from those in the clinics/doctors case. The basic issue is, even if the clinics and doctors cannot sue in federal court, does the Justice Department representing the national government have its own right to sue in its own national courts against the state itself as well as anyone involved in enforcing Senate Bill 8, because there are distinct federal constitutional issues at stake.
The Justice Department went into federal court after the clinics and doctors were frustrated in their case. The Department claimed that the Texas law seeks unconstitutionally to control how federal agencies deal with abortion, intrudes on the national government’s legal immunity to suits by states, interferes with federal power to protect the rights of citizens, and contradicts the supremacy of federal law in favor of abortion rights.
While the state of Texas argues that Congress has passed no law to give the federal government the power to sue states, the Justice Department counters that it has an inherent right under traditional principles of sovereignty to do so without Congress’s explicit permission. The Department also contends that the states gave up their immunity to being sued by the national government when the Constitution created the national Union.
If the Supreme Court were to rule against either or both the clinics/doctors case and the Biden Administration case on the right-to-sue issue, that presumably would end their challenges to the Texas law in federal court. The providers’ last hope then would be, if they were sued in state court, to try to defend themselves by arguing that Senate Bill 8 violates the federal Constitution; state courts do have the authority to decide that.
If, however, the Court were to clear the way for either or both to sue, then the Court would probably send the cases back to lower federal courts to decide directly on the challenges.
The Court has put the two cases on an especially fast track for review, so a decision could come rather quickly.
There is one potential – and huge — complication for these cases even if a right to sue were permitted: if the Supreme Court were to decide, in the Mississippi case to be heard on December 1, that the Constitution no longer protects a right to abortion, that presumably would end both challenges. They both depend on the continuing existence of that right.
NOTE TO READERS: The Mississippi case will be previewed in this space in advance of that December 1 hearing.
On Tuesday, the Supreme Court will hold hearings on two cases, one involving the free-speech rights of elected government officials, and one testing the scope of federal court power to decide arbitration cases.