On Monday, the Supreme Court heard two oral arguments to the Texas Heartbeat Act, one from abortion providers and the other from the federal government. The hearing seems to reflect a shift in opinion. Two of the conservative Justices, Kavanaugh and Barrett, who both voted against an injunction of the Heartbeat Act two months prior, hinted that they might allow challenges to the law.
The Texas Heartbeat Act, the state’s newest abortion legislation passed in September, prohibits abortion after fetal cardiovascular activities are detected, which is roughly six weeks after pregnancy. In order to avoid legal scrutiny and potentially bypass judicial review from federal courts, the Act also bars state officials from enforcing it and instead deputizes private citizens to sue those who “aid and abet” an abortion and win $10,000 in damage.
Shortly before the Heartbeat Act went into effect on September 1, the Supreme Court was asked to issue an injunction. However, by a vote of 5 to 4 — the three liberal justices along with Chief Justice Roberts dissenting — it rejected the request on the premise that it was difficult to judge whether the law would actually be enforced based on its wording.
Following its enactment, the Heartbeat Act significantly curtailed abortions in the state. According to a study published by the Texas Policy Evaluation Project, the number of abortions in September was down by 49.8% from last year. Such a sharp decrease virtually drove most of the abortion providers in Texas out of business. One of the providers, Whole Woman’s Health, filed a petition for a writ of certiorari to the Supreme Court and a motion to expedite the consideration, citing the “urgency of the harm to residents of Texas and neighboring States.”
On October 22, the Supreme Court granted certiorari to both Whole Woman’s Health v. Jackson and United States v. Texas, another challenge to the Heartbeat Act brought by the Biden administration. And in response to the motion to expedite, the hearing of oral arguments was scheduled to occur just two weeks later.
For the two cases, the question in front of the Supreme Court was not the constitutionality of the Heartbeat Act, but whether the abortion providers and the federal government are entitled to sue. The constitutional standard for abortion, set in Roe v. Wade and confirmed in Planned Parenthood v. Casey, permits states to restrict abortion only after fetal viability, which is about 23 weeks after the pregnancy. The Heartbeat Act then is, without a doubt, unconstitutional, but the law makes it almost impossible to name defendants and file a suit.
During the hearing, Marc Herron, an attorney for the Center for Reproductive Rights, and Elizabeth Prelogar, the federal solicitor general, focused on the mechanism of the law. “The Texas Legislature not only deliberately prohibited the exercise of a constitutional right recognized by this court,” suggested Herron, ”It did everything it could to evade effective judicial protection of that right in federal or state court.” Prelogar also referred to the Act as a deliberate attack “to thwart the supremacy of federal law in open defiance of our constitutional structure.”
Supporters of the Heartbeat Act, on the other hand, defended the judicial protection the law provided to state officials. “Petitioners’ pursuit of an injunction suffers from two fundamental problems,” said Texas’ solicitor general Judd Stone, “First, none of the individuals the petitioners sued are appropriate defendants under well-established Article III and equitable principles. Second, petitioners ask for an expansion of access to the federal courts that only Congress and not this court may provide.”
The hearing ended after three hours of intense questioning and heated debate. At this moment, it is unclear when the Supreme Court will make a decision, but considering the exceptionally fast track the Supreme Court put the two cases on, the decision may come soon. A decision in favor of the abortion providers would send the case back to lower courts for further proceedings. Judging from the attitude of the Justices, especially the conservative members of the court, it seems a majority of them are now leaning toward allowing the abortion providers, but not the federal government, to sue.
The decision for these two cases, of course, would not address the constitutional protection of abortion rights. The Supreme Court is scheduled to hear Dobbs v. Jackson Women’s Health Organization, a separate case that challenges the Mississippi abortion law, in December. That case would be an opportunity for the Justices to either reaffirm or begin the process of overruling Roe v. Wade.