The court’s attention in Monday’s arguments was not on its previous abortion precedents — which will be under more direct examination next month — but rather Texas’ mechanism for enforcing its ban on abortions after fetal cardiac activity is detected, a point about six weeks into pregnancy.
Texas has given citizens anywhere in the country a private right of action to sue those who facilitate abortions after that point. In the cases heard Monday, Texas is arguing that the law’s design prevents federal courts from issuing preemptive orders blocking the law from being enforced. Defenders of the ban told the court that Congress could always step in and prevent states from implementing such private cause of actions if it so chose.
“Can I give you examples where Congress hasn’t?” Sotomayor said to Texas Solicitor General Judd Stone. Sotomayor cited landmark opinions on gun control, same-sex marriage, sodomy and birth control.
“A state dissatisfied with Heller says anyone who possesses a firearm anywhere is subject to litigation by any private citizen anywhere in the country and gets a million-dollar bounty? No stare decisis, no nothing,” Sotomayor said. “How about in Obergefell, imposes SB 8-style liability on anyone who officiates, aids or abets a same-sex wedding? How about, dissatisfied with Lawrence vs. Texas, subjects private consensual sexual conduct of which it disapproved to the exact same law as SB 8? How about Griswold, the use and sale of contraception is subjected to SB 8-style liability.”
Sotomayor was joined by her fellow Democratic-appointees in hammering the point. They’ll need to pick up the votes of two GOP appointees on the court to secure a ruling that would let the federal lawsuits seeking to block the ban proceed. Previously, Chief Justice John Roberts joined the liberal wing in voting to temporarily block the law at an earlier point in the proceedings — still leaving the liberals a vote short of blocking it when it was first put on the Supreme Court’s doorstep this summer.
Justice Stephen Breyer at Monday’s hearing referenced the desegregation battles of the mid-20th century and asked Stone about the enforcement mechanism of the Texas ban being pointed at “anyone who brings a Black child to a White school.”
“If we uphold this, are we retroactively upholding that?” Breyer said, stressing that Congress was of “no help” in 1957, when Arkansas was resisting compliance with the Supreme Court desegregation decision Brown v. Board of Education.
When Stone tried to argue that state court judges could be relied on to follow the constitutional precedent, Breyer shot back that “they didn’t” in Arkansas.
Justice Elena Kagan said a ruling in Texas’ favor “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.”
“There’s a there’s nothing the Supreme Court can do about it. Guns, sex, marriage, religious rights, whatever you don’t like. Go ahead,” Kagan said.
In what could be a sign of hope for opponents of the ban, Trump-appointed Justice Brett Kavanaugh asked Stone whether federal courts could preemptively step in if a state law threatened massive damages for a gun purchase or for someone declining to provide a service for a same-sex marriage. Stone’s claim about the ability for Congress to pass laws to prevent such state actions prompted Kagan to jump in.
“Isn’t the point of a right that you don’t have to ask Congress? Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?” Kagan asked.
