Supreme Court hears challenges to Texas abortion law

Elizabeth Prelogar, U.S. Solicitor General: “Texas designed SB eight 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, but they are not free to place themselves above this court, nullify the court’s decisions and their borders, and block the judicial review necessary to vindicate federal rights. As this case comes to the court, there are three principal questions. First, is Texas responsible for this law? Second, can the United States sue to hold Texas to account? And third is the injunctive relief available, and the answer is yes, down the line.”

Marc Hearron, Attorney for Abortion Providers: “So this is a unique situation. I think the real danger is if this court does not allow the suit, then that will provide a roadmap for other states to abrogate other rights that have been recognized by this court.”

Elena Kagan, Associate Justice: “What exact relief are you requesting?”

Marc Hearron, Attorney for Abortion Providers: “We are requesting an injunction, so we have a pending class certification motion for a defendant class against the class, so we would be requesting an injunction against the commencement or the docketing of lawsuits against the clerks across the state of Texas, as well as injunctive relief against the state executive officials for their residual authority to enforce SB8.”

Judd Stone, Texas Solicitor General: “Petitioner’s pursuit of an injunction suffers from two fundamental problems. First, none of the individuals the petitioner sued are appropriate defendants under well-established Article 3 equitable principles. Second, petitioners ask for an expansion of access to the federal courts that only Congress and not this court may provide. Petitioners Article 3 and equitable problems again with what they really want an injunction against SB8, the law itself. They can’t receive that because federal courts don’t issue injunctions against laws, but against it, but against officials enforcing laws. No Texas executive official enforces SB8, either, and so no Texas executive official may be enjoined.”

John Roberts, Chief Justice: “As I understand, the only way in which you get federal court review is, of course, for somebody to take action that violates the state law and then be sued under the law and then have the opportunity to raise their defense in federal court eventually. And you’re saying that somebody is going to undertake that activity even though they’re going to be subject to suit for a million dollars repetitively and… because, that doesn’t exercise a chilling effect?”

Judd Stone, Texas Solicitor General: “That’s not what I’m saying at all your honor. What I’m saying is it doesn’t expand access to the federal courts.”