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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2:52 p.m. ET, November 1, 2021

Key things to know about today's Supreme Court oral arguments on the Texas abortion law 

From CNN's Ariane de Vogue

The oral arguments on the Texas law that bars abortion at around six weeks of pregnancy have wrapped. Supreme Court justices heard two sets of arguments for nearly three hours.

The justices limited their review to the law's novel structure, which bars state officials from enforcing it. Instead, private citizens — from anywhere in the country — can bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the law.

Critics say the law was crafted to shield it from challenges in federal courts and stymie attempts by abortion providers and the government to sue the state and block implementation.

What the justices said: Two key conservative justices seemed open to arguments from abortion providers that they should be able to challenge the ban in federal court, but in a separate challenge, brought by the Department of Justice, several conservative justices did express some reservations about the breadth of the government's arguments, with Chief Justice John Roberts calling the Biden administration's argument "as broad as can be."

Some justices, led by Justice Elena Kagan, suggested that the court could allow the suit brought by abortion providers to go forward and refrain from having to take action on the more complicated Justice Department case.

Reading tea leaves at the oral arguments, however, is a complicated endeavor.

Oral arguments were two months to the day that 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.

Amid 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 Roberts.

What may come next for the law is still up in the air, there’s no deadline or anything forcing the justices to act. Their decision to fast-track the oral arguments may however be an indication that they may act sooner rather than later.

Each side's arguments: The justices heard from Marc A. Hearron, a lawyer for the Center for Reproductive Rights representing a coalition of Texas abortion providers, Texas Solicitor General Judd E. Stone and newly confirmed Solicitor General Elizabeth Prelogar who argued on behalf of the Department of Justice.

Lawyers fighting the law called it blatantly unconstitutional and designed with the express intent to make challenges in federal court nearly impossible, therefore nullifying a woman's constitutional right to an abortion.

"Texas designed SB 8 to thwart the supremacy of federal law in open defiance of our constitutional structure," Prolegar said. "States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the court's decisions in their borders, and block the judicial review necessary to vindicate federal rights."

Hearron argued that the providers should be able to proceed with a lawsuit targeting not only Texas officials but also state court judges, clerks and any private parties who are responsible for implementing the law. The crux of the argument is that the state legislature cannot craft a law that's insulated from review in federal courts, particularly when the state has delegated enforcement to the general public.

In response to both disputes, Texas says neither case can proceed because the state is not the proper defendant since SB 8 bars state officials from enforcing the law.

Stone emphasized that neither case "presents a case or controversy" and that both challenges should be dismissed. Targeting the Biden administration's argument that federal law is supreme, Stone said the Constitution does not allow a "grant of federal power to sue whenever the United States wants."

What the law does: S.B. 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.

Read more about today's oral arguments here.

1:48 p.m. ET, November 1, 2021

Sotomayor: Texas "washing its hands" of ban doesn’t insulate agents from court order

From CNN's Tierney Sneed

Supreme Court Associate Justice Sonia Sotomayor arrives at the US Capitol on January 20 in Washington, DC. 
Supreme Court Associate Justice Sonia Sotomayor arrives at the US Capitol on January 20 in Washington, DC.  (Win McNamee/Getty Images)

Justice Sonia Sotomayor peppered Jonathan Mitchell – a lawyer and architect of the Texas abortion ban who is now defending it on behalf of intervenors in the Department of Justice case – with questions about his arguments for why a federal court couldn’t block private citizens from enforcing Texas law. 

“The state has passed a law that gives them the option to sue, and then it has washed its hands of the matter, so there is no joint participation in their decision,” Mitchell said, before Sotomayor cut him off. 

She asked Mitchell whether his arguments would apply to a prosecutor who had been tasked by the state to enforce a discriminatory law, or to someone who is implementing a primary election that excludes people on the basis of race. 

“We have recognized that washing your hands doesn’t insulate a state, or insulate people acting on behalf of the state,” Sotomayor said. Mitchell tried to argue that those scenarios are distinguishable to what Texas has done with its ban, but Sotomayor jumped back in. 

“Are suggesting that states can hire agents to do unconstitutional acts,” Sotomayor asked, to which Mitchell said no. “So how can states designate private individual to act under its laws to violate a person’s constitutional rights?” she asked.

12:48 p.m. ET, November 1, 2021

Justices Sotomayor and Kagan put heat on Texas for how ban creates model to attack other rights

From CNN's Tierney Sneed

Justices Sonia Sotomayor and Elena Kagan ripped the Texas ban for how it would create a model for states to attack other constitutionally protected rights. 

Sotomayor grilled Texas Solicitor General Judd Stone on Texas’ argument that Congress could step in and write legislation that would prevent states from passing such laws. “Can I give you examples where Congress hasn’t?” Sotomayor said, ticking off decisions the Supreme Court has made on gun rights, same-sex marriage, birth control, sodomy, and other contentious issues. 

“So this is not limited to abortion. That’s the point that’s been raised. It’s limited to any law that a state thinks it’s dissatisfied with,” she said. 

Kagan picked up the torch, telling Stone that “guns, same sex marriage, religious right, whatever you don’t like” can now be targeted with a law like the Texas ban.

1:41 p.m. ET, November 1, 2021

Kavanaugh nods to arguments from ban’s supporters about Roe being in doubt

From CNN's Tierney Sneed

Justice Brett Kavanaugh nodded to an argument made by the ban’s supporters in the case that there is not danger of the ban’s enforcement mechanism being pointed at other constitutionally-protected rights because those rights are more certain than the right to an abortion.

“What if our precedent on something in a different area of law altogether was just uncertain?” Kavanaugh asked the Justice Department. “There was an open question about something and a state wanted to cabin, draw a line with respect to the precedent. Would the US have the authority there? Is there something about what you think is the clarity of the violation here that triggers your authority?”

Kavanaugh did not mentioned it explicitly, but the court is hearing another abortion case next month — a challenge to Mississippi’s 15-week ban — where the court’s precedent in Roe v. Wade will be explicitly in play.

1:42 p.m. ET, November 1, 2021

Roberts says DOJ is seeking “limitless, ill-defined authority”

From CNN's Tierney Sneed

Chief Justice John Roberts on Jan. 20, 2021 in Washington, DC. 
Chief Justice John Roberts on Jan. 20, 2021 in Washington, DC.  (Jim Lo Scalzo/Pool/Getty Images)

Following up on Justices Elena Kagan’s and Samuel Alito’s questions about whether a ruling in the Department of Justice's favor could be appropriately limited, Chief Justice John Roberts said he had his “concerns” about how narrowly this case could be treated.

“I share some of the concerns that have been voiced by my colleagues,” Roberts said, “You say this case is very narrow, it’s rare, it’s particularly problematic," he said.

But the authority the US was claiming in bringing its lawsuit was a “limitless, ill-defined authority,” Roberts said.

He asked the solicitor general to explain the “limiting principle” and grilled her specifically on the idea that the court could issue against state court clerks or anyone who could bring private litigation under the law.

1:02 p.m. ET, November 1, 2021

Justices Kagan and Alito make their cases

From CNN's Dan Berman

Supreme Court associate justices Samuel Alito, left, and Elana Kagan testify about the court's budget during a hearing of the House Appropriations Committee's Financial Services and General Government Subcommittee, in Washinton, D.C. on March 07, 2019.
Supreme Court associate justices Samuel Alito, left, and Elana Kagan testify about the court's budget during a hearing of the House Appropriations Committee's Financial Services and General Government Subcommittee, in Washinton, D.C. on March 07, 2019. (Chip Somodevilla/Getty Images)

Justices Elena Kagan and Samuel Alito asked back-to-back questions of Solicitor General Elizabeth Prelogar about what limits the Supreme Court could put on its ruling if it was to rule against Texas in the case.

The questions appeared aimed not just at the Department of Justice, but at the potential swing votes on the court, with Kagan seemingly seeking to assure the justices that a ruling in the Department of Justice’s favor could come with limits and Alito asserting that what the US was asking for was “inconsistent” with the rule of law.

Kagan started first, asking Prelogar: “If there’s some fear that the law we make about how to craft relief will apply in other cases where it’s not so necessary, what would you say, what would you do to ensure that that did not take place, to essentially cabin this kind of relief to the peculiar circumstances of this case?"
Prelogar pointed to the Texas’ ban unusual tactic of tasking private citizens with enforcement. She said that the court could also limit its ruling by articulating “that this is the rare case where the mere existence or threat of the litigation is itself causing the constitutional harm.”

Alito was next up, and he zeroed in on how – in his characterization – the US was arguing the Supreme Court should issue a rule that would apply just to this case.

That approach is “inconsistent” with rule of law, Alito said. He also took aim at the idea that state court judges could be blocked by the federal judiciary from presiding over certain cases.

“When has that been done and how can that be justified?” Alito said.

He added he believed the DOJ was arguing that a “federal judge can enjoin state judges because they’re, they’re lower creatures.”

12:03 p.m. ET, November 1, 2021

The 113-year-old case critical to today’s debate

From CNN's Dan Berman

Ordinarily, sovereign immunity prevents individuals from suing government officials and officers. But what happens when those government officials are acting unconstitutionally, enforcing an unconstitutional law?

In 1908, the Supreme Court established an exception to this sovereign immunity principle in a case called Ex Parte Young, allowing individuals to sue and enjoin government officials from acting when they enforce unconstitutional laws.

But individual plaintiffs cannot simply sue the state or any government official they’d like to. Instead, they must show a nexus between the government official being sued, and the purported unlawful act enforcing the unconstitutional law. 

CNN legal analyst and University of Texas Law professor Steve Vladeck says it matters here for two reasons:

“On one hand, the Supreme Court in Young recognized that those whose constitutional rights are being violated by state officers should be allowed to sue those officers and obtain an injunction barring the state officers from continuing to violate the Constitution.
On the other hand, Young also suggested that state judges would not usually be the proper defendants unless they were directly responsible for the violation. The question is which of these principles yields in a case, like this one, in which the state has no role in enforcing its law—and has outsourced enforcement to private parties.”
11:48 a.m. ET, November 1, 2021

Department of Justice: "Texas is responsible for the constitutional violation here"

From CNN's Dan Berman

Solicitor General Elizabeth Prelogar started with a clear rundown of the Justice Department’s arguments, that Texas designed a law to violate constitutional rights in a way that can’t be challenged.

“Texas designed S.B. 8 to thwart the supremacy of federal law in open defiance of our constitutional structure,” Prelogar said. “States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the Court’s decisions in their borders, and block the judicial review necessary to vindicate federal rights.”

“Texas is responsible for the constitutional violation here. It enacted a law that clearly violates this Court’s precedents,” she added. “It designed that law to thwart judicial review by offering bounties to the general public to carry out the state’s enforcement function. And it structured those enforcement proceedings to be so burdensome and to threaten such significant liability, that they chill the exercise of the constitutional right altogether.”

"If Texas can nullify Roe and Casey in this manner, then other states could do the same with other constitutional rights or other decisions of this court that they disfavor," she continued.

11:50 a.m. ET, November 1, 2021

Barrett on letting state courts take lead on litigating ban: "You cannot get global relief"

From CNN's Tierney Sneed

Justice Amy Coney Barrett pushed back on a line of questions from fellow conservative Justices Samuel Alito and Neil Gorsuch, in which they leaned into the idea that state courts can take the lead on litigating the ban.

Alito asked Texas about the cases already pending in state court against the ban, and the quickness with which they’ll move forward.

Gorsuch, meanwhile, asked about the ability of providers to get preemptive orders blocking enforcement of the ban against them.

Barrett took aim specifically at Gorsuch’s question, and noted in a question to the Texas’ lawyer that providers can’t sue the state attorney general in court to preemptively block the ban.  

“You cannot get global relief” in state court, Barrett said, the way one can obtain pre-enforcement orders in federal court against state officials. The question reflects Barrett may be inclined to vote to block the law.