By Dave Andrusko
In a three-hour long session, the Supreme Court today heard the first of two pivotal pro-life laws enacted by Texas and Mississippi, respectively.
This morning justices heard two different challenges to Texas S.B.8, ably defended by Texas Solicitor General Judd Stone. The first to Texas’ Heartbeat law was filed by abortion providers [Whole Woman’s Health v. Jackson] and the second by the Biden-Harris justice department [United States v. Texas]. The case was heard just ten days after the High Court granted review.
On December 1, the High Court will hear the Gestational Age Act, a Mississippi law that, with very few exceptions, forbids abortion after the 15th week. In Dobbs v. Jackson Women’s Health Organization, the justices will decide whether all pre-viability prohibitions on elective abortions are unconstitutional.
The Supreme Court has twice allowed enforcement of SB 8, including on October 22, although cautioning it was not saying whether the law was constitutional.’
The legal debate over S.B.8 centers around a provision which empowers an individual to sue anyone who knowingly performs or aids an abortion after a fetal heartbeat has been detected. This effectively transfers enforcement responsibility from the state government to citizens. The mother is not legally liable. “The abortion providers, led by the Center for Reproductive Rights, wants to enjoin judges and county clerks from entertaining the law’s civil suits,” reported Robert Barnes of the Washington Post.
Attorney General Ken Paxton strongly disagreed. “Texas does not cause the United States injury by the mere existence of an allegedly unconstitutional state law that may affect private parties,” he wrote in the state’s filing to the court. “Congress has not given the Attorney General a cause of action to enforce abortion rights … let alone against a State.”
The Department of Justice, which faced much skeptical questioned, sued Texas allegedly on behalf of those who it said were being denied their constitutional rights.
In a vigorous back and forth, the justices today probed these two questions.
“Elizabeth B. Prelogar, the U.S. solicitor general, argued that ‘no constitutional right is safe’ if justices allow the Texas law to stand. But conservative judges sharply questioned Prelogar about the rationale for the administration’s request to block the law,” Barnes reported. “Judd E. Stone II, the Texas solicitor general, argued that the federal government and abortion providers do not have legal grounds to sue the state in federal court, a focus of Monday’s hearing.”
The justice department ‘s lawsuit against S J. 8. Stone maintained. “offends the separation of powers by usurping for the executive branch the role Congress plays in determining what cases may be heard and what remedies may be provided in the federal courts.” According to Mariana Alfaro, Stone went on to say
“No Texas official is a proper defendant in a pre-enforcement challenge to S.B. 8,” Stone argued. “The United States cannot cure that problem by naming the state of Texas as a nominal defendant and then asking for relief that runs against the same Texas officials that are inappropriate targets for an injunction.”
Moreover, he said, the federal government is not “a proper plaintiff” because it cannot claim a sovereign right interest in suing to enforce individual rights under Planned Parenthood v. Casey.
“The remedy it seeks would be completely foreign to traditional equity,” he said. “Congress must create such novel remedies — if they are to exist at all — and Congress has impliedly rejected giving the United States such relief by providing other avenues to vindicate 14th Amendment rights.”
The Justice Department, he argued, is asking the Supreme Court to “disregard all of this.”
“Such a request must be directed to Congress,” he said. “The United States cannot seriously assert that the Constitution requires pre-enforcement federal judicial review. It opposes that result in virtually every other case.”