Supreme Court to hear arguments Monday on Texas Heartbeat Law. Texas, abortion providers, and Justice Department file briefs

By Dave Andrusko

Just days after the Supreme Court agreed to fast-track challenges to Texas’ Heartbeat Law, three parties—abortion providers, the Department of Justice, and the state of Texas—filed opening briefs yesterday criticizing and defending S.B. 8, the Texas Heartbeat Law.

“The court will hear arguments on Monday in two different challenges, one brought by abortion providers in the state and the other by the Justice Department,” according to Adam Liptak of the New York Times. “The court’s scheduling order required the two sides to file their opening briefs simultaneously, with responses due on Friday. … Ken Paxton, Texas’ attorney general, filed a single brief in both cases, arguing that neither the federal government nor the providers were entitled to sue.”

As Texas explained in its brief,

Under these new provisions, a physician must determine whether an unborn child has a detectable fetal heartbeat prior to performing any abortion. They then prohibit the physician from “knowingly perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child” unless a medical emergency prevents compliance.

The Texas law uniquely permits private citizens rather than state officials to file enforcement lawsuits. The mother is not liable. Critics of the Department of Justice say the issue  is whether U.S. Attorney General Merrick Garland can sue a state anytime he deems a state law to be unconstitutional. 

The law took effect September 1, and with the exception of a brief period when Federal Judge Robert Pitman enjoined S.B.8, the Texas Heartbeat Law has been in effect ever since.

Judge Pitman’s angry decision was swiftly overturned by a three judge panel of the U.S. Court of Appeals for the 5th Circuit which reinstated the law. “It said it would consider the merits of the law in December,” wrote the Washington Post’s Robert Barnes, “But the Supreme Court agreed to the request from abortion providers and the Justice Department not to wait for the 5th Circuit to rule on the merits.”

The Supreme Court had cited the law’s “complex and novel” procedural questions while it cautioned that it was not addressing whether the law is constitutional.

Texas Attorney General Ken Paxton told the Justices

The Constitution does not guarantee pre-enforcement review of state (or federal) laws in federal court. And there is nothing unprecedented about vindicating constitutional rights as a state-court defendant. To the contrary, that is the normal path by which constitutional issues come to this Court…

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. 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.

Paxton keenly argued

Under this Court’s normal approach, the United States does not have standing. The United States suggests that the Court should dispense with its normal approach because this is an extraordinary situation. “Implicit in” that argument “is the philosophy that the business of the federal courts is correcting constitutional errors,” regardless of whether a case or controversy exists. But this Court has repeatedly held that “[t]his philosophy has no place in our constitutional scheme.”

Meanwhile, on December 1, the justices will hear arguments in Dobbs v. Jackson Women’s Health Organization, the state’s “Gestational Age Act,” which prohibits abortions after 15 weeks.