The Supreme Court heard oral arguments Monday in two cases challenging the new pro-life law in Texas, S.B. 8, which effectively bans most abortions in the state once a fetal heartbeat can be detected, or around six weeks of pregnancy.
According to Fox News, things didn’t exactly go swimmingly for Republicans defending the Texas law, with liberal Supreme Court Justice Elena Kagan even making a sarcastic remark referring to the crafters of the law as “geniuses” who developed a clever solution for sidestepping federal judicial review.
Though the state’s restrictive anti-abortion law is central to the case, the Monday arguments focused more on its unique method of enforcement: It isn’t state officials who are tasked with enforcing S.B. 8, but private citizens who are empowered to file civil suits against abortion providers.
As such, the real question of the day — posed differently by both Texas abortion providers as well as the Biden administration — was who, exactly, could be sued in order to trigger a federal judicial review that could lead to an injunction.
“We can’t do anything about it”
According to SCOTUSblog, the justices appeared inclined to side with the abortion providers in at least allowing their challenge of the Texas law to go forward. They weren’t quite so keen on the Biden Justice Department’s challenge.
It was during arguments on the former case, Whole Woman’s Health v. Jackson, that Kagan uttered her snide comment toward Texas legislators, who she said deliberately set about to “find the chink in the armor” of longstanding Supreme Court precedent known as Ex parte Young, which allows federal injunctions to block enforcement of state laws.
Kagan reportedly said the high court shouldn’t sit idly by simply because “some geniuses came up with a way to evade the commands of that decision, as well as…the broader principle that states are not to nullify federal constitutional rights,” nor should the court continue to refrain from action because “we’ve never seen this before, so we can’t do anything about it.”
Similar points were made by Chief Justice John Roberts as well as Justices Brett Kavanaugh and Amy Coney Barrett, SCOTUSblog noted.
Some of the more conservative jurists, including Justice Neil Gorsuch, raised concerns that the unique enforcement mechanism could be applied in other states to other constitutional rights, such as the Second Amendment, if allowed to stand.
A look ahead
As for the federal government’s case, United States v. Texas, SCOTUSblog reports that the court was less favorable, citing concerns that the Justice Department was seeking broad new authorities to challenge states in response to what even the administration had described as a “narrow” and “rare” problem.
Newly confirmed Solicitor General Elizabeth Prelogar reportedly received substantial pushback on her arguments by Roberts as well as Justices Gorsuch and Samuel Alito.
It remains to be seen how the high court will ultimately rule in this case, but one thing is for certain: Progressives won’t stop until they’ve exhausted every legal avenue available in their attempt to throw out one of the most pro-life laws in modern U.S. history. Only time will tell if Texas can overcome the challenges in court.