Federal standing not as clear
The U.S. Department of Justice sued Texas on September 9, saying the law negated the constitutional right to an abortion.
“The Act is clearly unconstitutional under longstanding Supreme Court precedent,” Attorney General Merrick Garland said at the time.
At the court, U.S. Solicitor General Elizabeth B. Prelogar called it a “brazen attack” on the supremacy of federal law and said it would open the door to other states mounting similar challenges.
Justice Kagan seemed to agree.
“The entire point of this law, its purpose, and its effect is to find the chink in the armor of Ex parte Young,” a 1908 law that “set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws,” she said, decrying that “after all these many years, some geniuses came up with a way to evade the commands of that decision.”
Judge Stone waved off the concerns. “Nothing in this law even pretends that Texas courts could evade that because it can’t,” he said.
“Essentially, we would be inviting states, all 50 of them, with respect to their unpreferred constitutional rights, to try to nullify the law — that this Court has laid down as to the content of those rights,” said Justice Kagan.
Justice Kavanaugh also seemed concerned about that possibility.
“It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights if this position is accepted here,” he said, citing a brief submitted by the Firearms Policy Coalition that supported the Whole Woman’s Health challenge.
Justice Neil Gorsuch seemed dubious that the Texas law would undercut anybody’s right to challenge.
“Often constitutional rights, of course, can only be enforced in a defensive posture, when an individual is faced either with potential liability, punitive damages, but also, of course, civil fines — fines and even criminal sanction, including prison time,” he said.
Judge Stone argued that the U.S. government is “not a proper plaintiff” and did not have the right to sue Texas or any of its officials because none were involved in enforcing the law. If the federal government didn’t like the law, it should ask Congress to fix it, said Judge Stone.
After the hearing, Texas Attorney General Ken Paxton reiterated that position.
“The Biden Administration does not have the power to sue a state, such as Texas, just because it disagrees with a state law that protects the unborn,” he said in a statement.
A ruling on the challenges will not put an end to the litigation over SB 8.
“Even if the Supreme Court does rule that the abortion provider plaintiffs are allowed to sue, it is likely that there will still need to be more litigation in a federal trial court before SB 8 is actually determined to be unconstitutional and is blocked by a court order,” wrote Ian Millhiser, a Supreme Court scholar, after the hearing.
A federal judge in Austin did approve the Department of Justice’s request for a temporary halt to the law in October, but days later, the Fifth Circuit Court of Appeals ruled it could go back into effect while the legal questions were being pondered in the courts.
A version of this article first appeared on Medscape.com.