WASHINGTON — After almost three hours of lively arguments Monday at the Supreme Court, a majority of the justices seemed inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a federal court challenge to a Texas law that has sharply curtailed abortions in the state.
That would represent an important shift from a 5-4 ruling in September that allowed the law to go into effect. Justices Brett Kavanaugh and Amy Coney Barrett, who were in the majority in that ruling, asked questions suggesting that they thought the novel structure of the Texas law justified allowing the providers to challenge it.
Kavanaugh said that permitting a challenge might amount to closing a loophole. Barrett said the law was structured to prevent the providers from presenting a “full constitutional defense.”
A decision to allow a challenge would not conclude the case or address whether the law itself is constitutional. Instead, it would return the case to lower federal courts for further proceedings. Moreover, it was not clear whether, if the court allowed either the providers or the administration to sue, it would temporarily block the law while the case moved forward.
The law, which went into effect Sept. 1, was drafted to evade review in federal court, a goal the state has so far achieved. The law, which bans most abortions after about six weeks and includes no exceptions for pregnancies resulting from rape or incest, has caused clinics in the state to turn away many women seeking the procedure.
There is little question that the ban itself is unconstitutional under two key Supreme Court precedents, Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992. Those rulings prohibited states from barring abortions before fetal viability, or about 23 weeks.
The question for the justices was whether abortion providers and the Biden administration are entitled to challenge the law in federal court. Officials in Texas say the novel structure of the law, known as Senate Bill 8, forbids such challenges.
Lawyers on both sides said the stakes were very high.
“To allow Texas’ scheme to stand would provide a road map for other states to abrogate any decision of this court with which they disagree,” said Marc A. Hearron, a lawyer for the providers. “At issue here is nothing less than the supremacy of federal law.”
Judd E. Stone II, solicitor general for the state of Texas, said allowing the providers to sue would “alter bedrock doctrines organizing the federal courts.”
Kavanaugh appeared most interested in whether the justices could find a way to permit the abortion providers to pursue their challenges by suing state officials even though the law was written to try to preclude that approach, notably by barring state officials from enforcing it. The providers instead sought to sue state judges and court clerks.
Defenders of the Texas law have invoked a 1908 Supreme Court decision, Ex parte Young, that appears to bar lawsuits to restrain state courts. But the broader meaning of the 1908 case, Kavanaugh suggested, was that states could not totally evade challenges to laws said to be unconstitutional.
The Texas abortion providers should be able to sue at least court clerks, he suggested.
For her part, Barrett took issue with the state’s assertion that providers could adequately challenge the law by violating it, getting sued and defending themselves by arguing that the law is unconstitutional.
“The full constitutional defense cannot be asserted in the defensive posture, am I right?” she asked.
The law does allow defendants to argue that the law had imposed an undue burden on the right to abortion, drawing on language from the Casey decision. But Barrett suggested that the defense permitted by the law was far too narrow.
The court’s two most recent precedents on abortion, she said, allowed courts to consider “the law as a whole and its deterrent effect.”
Justice Samuel Alito, who had been in the majority in September, said he did not see how the Supreme Court could allow suits against clerks in state courts.
“A clerk performs a ministerial function,” he said. “Somebody shows up with a complaint, wants to file a complaint, and assuming the formal requirements are met, the clerk files the complaint. The clerk doesn’t have the authority to say, you can’t file this complaint because it’s a bad complaint.”
The four justices who dissented in September — Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — did not seem to have changed their minds about the law. And Justices Alito, Clarence Thomas and Neil Gorsuch asked questions that suggested they thought the federal courts had no role to play.
The law allows private citizens to file suits in state courts against doctors, staff members at clinics, counselors, people who help pay for the procedure and even drivers who take a patient to a clinic. Such plaintiffs, who do not need to live in Texas, have any connection to the abortion or show any injury from it, are entitled to at least $10,000 and their legal fees if they win.
Roberts asked a telling question.
“Assume that the bounty is not $10,000 but a million dollars,” Roberts said, adding, “Do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court process?”
Stone said no. That answer did not seem to satisfy the chief justice.
“Nobody is going to risk violating the statute,” he said, “because they’ll be subject to suit for a million dollars.”
Stone said the Texas law “is capped at much less than that.”
“Yeah,” Roberts said, a little irritated. “My question is what we call a hypothetical.”
Solicitor General Elizabeth B. Prelogar, representing the federal government, said the Texas law was designed “to thwart the supremacy of federal law in open defiance of our constitutional structure.”
“States are free to ask this court to reconsider its constitutional precedents,” she said, “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.”
Several justices, including ones who had shown sympathy for the providers’ challenge, seemed wary of allowing the federal government to sue states for enacting laws said to violate the Constitution.
“You say this case is very narrow, it’s rare, it’s particularly problematic,” Roberts said. “But the authority you assert to respond to it is as broad as can be.”
When the court agreed to hear appeals in the two cases — Whole Woman’s Health v. Jackson, No. 21-463, and United States v. Texas, No. 21-588 — it put them on an exceptionally fast track. But the court said it would decide only the procedural questions of who is entitled to sue, not the constitutional one of whether the law violates precedents guaranteeing a right to abortion until fetal viability.
In December, the justices will hear arguments in a separate case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, which takes on a Mississippi law that bans abortions after 15 weeks. That case is a direct challenge to the constitutional right to abortion.