Supreme Court hears oral arguments on Texas abortion law

By Meg Wagner, Melissa Macaya, Veronica Rocha and Tierney Sneed, CNN

Updated 2:51 p.m. ET, November 4, 2021
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11:04 a.m. ET, November 1, 2021

Barrett signals some sympathy for providers' arguments in Texas abortion case 

From CNN's Tierney Sneed

Associate Justice Amy Coney Barrett at the Supreme Court in Washington, DC on April 23, 2021.
Associate Justice Amy Coney Barrett at the Supreme Court in Washington, DC on April 23, 2021. (Erin Schaff/Pool/Getty Images)

Justice Amy Coney Barrett asked the lawyer representing abortion providers a line of friendly questions, suggesting she may have some sympathy for their arguments in the Texas six-week abortion ban case

Barrett is a crucial vote in the case. She declined to vote in favor of blocking the law at earlier stages in the proceedings.  

On Monday, she asked about what kind of defense providers and others who facilitate abortions after six weeks can put in court if they are sued under Texas law. Her questions hit on a key issue in the case. The law’s foes argue that the extraordinary nature of the Texas law, and how it tilts the state litigative system against abortion providers, warrants extraordinary action by the federal judiciary. 

Texas and its allies are arguing that the constitutional questions that the ban raises can be resolved in the state court litigation brought under the law 

Barrett asked whether the providers, when facing state court litigation under the ban, can mount a full constitutional defense of their actions, under the law’s restrictions of what they can argue in the state court litigation. 

In a follow up, she suggested that the way that the enforcement mechanism was designed – in how it precludes what defendants can argue about the undue burden being placed on them – seemed to be at odds with the court’s previous rulings on abortion rights. 

Tellingly, Justice Samuel Alito — who has asked tough questions of the providers — jumped in to the line of questioning to lob another pointed question at the providers.

10:44 a.m. ET, November 1, 2021

Can the Supreme Court block court clerks?

From CNN's Dan Berman

Debate turned on whether the court can block state court clerks from putting lawsuits against abortion providers on the docket.

Marc A. Hearron, a lawyer for the Center for Reproductive Rights representing a coalition of Texas abortion providers, said an injunction against court clerks would help relieve the “chilling effect” S.B. 8 has had against women and abortion providers.

“It’s the rules that have been created by the Texas legislature that turn courts into a weapon,” he said to critical questions from Chief Justice John Roberts and others.

“The state has made the clerks an essential role in the machinery it has created,” Hearron said.

10:15 a.m. ET, November 1, 2021

What the scene is like outside the Supreme Court

Anti-abortion protesters gather outside the U.S. Supreme Court on Monday.
Anti-abortion protesters gather outside the U.S. Supreme Court on Monday. (Jim Lo Scalzo/EPA-EFE/Shutterstock)

The Supreme Court justices are hearing oral arguments related to a Texas law that bars abortion at around six weeks of pregnancy.

Outside of the court, supporters and opponents of the law are gathering as the oral arguments unfold.

Abortion supporters outside of the U.S. Supreme Court on Monday.
Abortion supporters outside of the U.S. Supreme Court on Monday. Jim Lo Scalzo/EPA-EFE/Shutterstock

10:22 a.m. ET, November 1, 2021

Here's who is arguing on behalf of the Justice Department 

From CNN's Dan Berman

Elizabeth Prelogar will argue the case for the Justice Department — in her first full day on the job as solicitor general. 

The Senate confirmed her on Thursday, and she was sworn in on Friday. Prelogar, an alum the special counsel Robert Mueller’s team who spent several years at the department before that investigation, was named as President Biden’s choice for the post in August, just weeks before the Supreme Court’s new term was to start.

Biden’s slowness in announcing her nomination raised eyebrows in the legal community, as she had been serving as acting solicitor general since the beginning of his administration.

The director of public affairs for the Justice Department shared an image from the swearing in ceremony Friday:

10:10 a.m. ET, November 1, 2021

A representative of a coalition of Texas abortion providers is speaking now 

From CNN's Ariane de Vogue

A coalition of Texas abortion providers is going first — represented by Marc A. Hearron, a lawyer for the Center for Reproductive Rights.

The crux of his argument is that the providers have the legal right to sue Texas officials, state judges, clerks and private individuals.

They say under normal circumstances a state would be immune from such lawsuits, but this case is different because the law was designed to avoid judicial review.

10:02 a.m. ET, November 1, 2021

NOW: Supreme Court holds oral arguments on Texas abortion ban

From CNN's Ariane de Vogue

A sharply divided Supreme Court is gathering now to once again consider a Texas law that bars abortion at around six weeks of pregnancy, reigniting a debate concerning the most restrictive law in the country.

Oral arguments come two months to the day after a 5-4 court allowed the law to go into effect, halting most abortions in the country's second largest state, and flooding clinics in nearby states with patients from Texas.

Amidst a nationwide firestorm, the Supreme Court agreed to fast-track two appeals brought by a coalition of abortion providers and the Biden administration, signaling that the justices understand the case to be one of the most urgent the court has considered under Chief Justice John Roberts.

What to expect today: Lawyers fighting the law will argue that it is blatantly unconstitutional and was designed with the express intent to make challenges in federal court nearly impossible, therefore nullifying a woman's constitutional right to an abortion.

SB 8, the law in question, bars abortions after the detection of a fetal heartbeat at around six weeks — often before a woman knows she is pregnant — and is in stark contrast to Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

After the justices allowed the law to go into effect on Sept. 1, with Roberts joining the liberal justices in dissent, women in the state scrambled across state borders and lower-income women were left with few options. The law has no exception for rape or incest.

9:53 a.m. ET, November 1, 2021

Supreme Court orders lower court to rehear case over New York mandate of coverage of abortion services 

From CNN's Ariane de Vogue

The Supreme Court on Monday wiped away a decision that upheld a New York regulation that mandates that employer health insurance policies provide coverage for abortion services.

The justices instructed the lower court to take another look at the case in light of a decision the justices rendered last spring.

In that case, the court ruled that Philadelphia violated the First Amendment when it froze the contract of a Catholic foster care agency that refused to work with same-sex couples as potential foster parents because the agency believes that marriage should be between a man and a woman. 

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have agreed to hear the case brought by religious groups.

The news came as the justices prepare to hear oral arguments on a Texas law that bars abortion at around six weeks of pregnancy.

9:35 a.m. ET, November 1, 2021

These are the key Supreme Court justices to watch today

From CNN's Joan Biskupic

Since the challenge to a Texas abortion ban first reached the Supreme Court two months ago, the justices have conferred only in private over the law that flouts nearly a half century of abortion-rights rulings.

On Monday the internal debate goes public, as the nine hold oral arguments and air concerns about the ban's constitutionality or, alternatively, why they believe it is sound. Twice, the majority has rejected pleas to suspend the abortion ban.

In this round, the justices are not directly revisiting the constitutional right to abortion, established in 1973, but rather addressing the authority of judges to vindicate rights.

The paired lawsuits, brought by Texas abortion clinics and the US Department of Justice, come to the high court at a time when it has been flexing its new conservative muscle, with three appointees of former President Trump.

The court has shown a new willingness to delve into controversies over abortion and guns and, as it demonstrated Friday, take up red-state-versus-blue-state cases on climate change and immigration, too.

The remarks of three particular justices on Monday could foreshadow whether a majority will reinforce its support for Texas:

  • Chief Justice John Roberts has tried in vain to persuade the court majority to suspend the ban and deescalate the controversy that polls suggest has hurt public approval of the justices. Now in his 16th year, Roberts has tried to protect the integrity of the court in the public eye, a task that grew more difficult in the Trump era.
  • Justice Brett Kavanaugh has been most willing of the right-wing justices to join the chief in compromise but has rejected his arguments in this case. Kavanaugh has in past abortion-related matters expressed ambivalences during negotiations but ultimately voted against reproductive rights; he has dashed Maine Republican Sen. Susan Collins' assertion during his 2018 confirmation fight that he assured her he would respect abortion-rights precedent.
  • Justice Amy Coney Barrett faces her first test on the issue since being appointed in 2020 by Trump. Barrett was a vocal opponent of abortion rights during her years as a Notre Dame law professor, and Senate Judiciary Committee chairman Lindsey Graham declared last year, "This is the first time in American history that we've nominated a woman who's unashamedly pro-life and embraces her faith without apology." Barrett, a devout Roman Catholic, told senators she could set aside any biases to decide cases impartially.

9:33 a.m. ET, November 1, 2021

Sotomayor has emerged as the most vocal critic of the Texas abortion law

From CNN's Ariane de Vogue

Sonia Sotomayor, associate justice of the U.S. Supreme Court, in Washington, DC, on April 23, 2021. 
Sonia Sotomayor, associate justice of the U.S. Supreme Court, in Washington, DC, on April 23, 2021.  (Erin Schaff/The New York Times/Bloomberg/Getty Images)

Liberal Justice Sonia Sotomayor has emerged as the most vocal critic of the law, and has been especially critical that her colleagues have so far allowed it to remain in effect. In her most recent dissent — last week, when the court allowed the law to stay on the books for the second time — she said that Texas, "empowered by this Court's inaction," has "thoroughly chilled the exercise of the right recognized in Roe."

Sotomayor was the only justice to say that the court should have immediately blocked the law. Liberals Elena Kagan and Stephen Breyer may have held their fire because they were placated by the fact that the court scheduled arguments so quickly or because they believe conservative votes may still be in play.

Meanwhile, "friend of the court" legal briefs flowed into the court Wednesday as parties attempted to illustrate the broad impact of its potential ruling.

Massachusetts Attorney General Maura Healey is leading a coalition of 24 attorneys general siding with the abortion providers in the state. In their brief, Healey detailed how clinics in neighboring states are overwhelmed with patients from Texas. Healey warned the justices that if they were to greenlight the Texas law, other states could draft similar laws in areas such as gun rights, marriage equality and voting rights.

Healey told the court that the states recognize the "vital role" that judicial review plays in resolving tensions between a state's policy preference and a constitutional right. "Where longstanding precedent clearly and unambiguously forecloses a particular policy as unconstitutional, a State cannot be permitted to disregard that precedent by passing an unconstitutional law and shielding it from judicial review," Healey argued.

Indiana and 19 other Republican-led states filed a brief in support of Texas, arguing that the district court that ruled in favor of the Department of Justice "threatens to expose every State in the Union to a suit by the federal Executive Branch whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere."

Although on Monday the justices will limit the dispute to procedural issues related to the law and not whether it violates court precedent, they will tackle the future of Roe v. Wade in a separate dispute in December. In that case, Mississippi is defending its 15-week ban and explicitly asking to overturn Roe.