Yesterday, the Supreme Court heard oral arguments in two challenges related to Senate Bill 8, the extreme anti-abortion bill that went into effect over two months ago in Texas. Arguments lasted over three hours and it appears that the unique structure of SB 8, which allows anyone to sue somebody they believe has aided or abetted an abortion, could jeopardize the law.
The Supreme Court announced they would hear the fast-tracked appeal cases after deciding they would not block SB 8, which went into law on September 1. The case Whole Woman’s Health v. Jackson was brought by several Texas clinics and abortion fund groups, and the case The United States v. Texas was brought by the Justice Department.
During the arguments, several of the Justices seemed wary over the ramifications of the vigilante enforcement of SB 8. Justice Kavanaugh cited a brief from a firearms rights group that outlined how the Texas bill could be modified by other states to threaten gun owners.
The Texas Solicitor General Judd Stone, who was arguing on behalf of SB 8, received a lot of pushback from the Justices. He and Chief Justice Roberts had a particularly testy exchange over the bounty aspect of SB 8. Indicted Texas Attorney General Ken Paxton was also at the Supreme Court for the arguments.
After the Court adjourned, lawyers representing the Texas plaintiffs held a virtual press conference to discuss what occurred. The lead attorney for the Whole Woman’s Health case was Marc Hearron, who is the Senior Counsel at the Center for Reproductive Rights. He was joined by Julie Murray, a senior staff attorney at Planned Parenthood Federation of America, who was the second chair on the case.
Murray spoke about how potentially five or even six Justices seemed to indicate their broad disagreement with how SB 8 is enforced. “SB 8’s structure is such that it could be used across the board to target constitutional rights that states are hostile to,” she said. Murray also noted that even Stone and the other lawyers representing Texas were candid that similar legislation could be crafted to target things beyond gun rights including same sex marriage, birth control, and religious liberties.
“What the Justices appear to recognize today is it’s Texas’s position that is extreme, and that it would undermine the foundation of our entire constitutional democracy,” said Hearron. However, even though he was cautiously optimistic about the justice’s hostility towards the vigilante portion of SB 8, Hearron highlighted that abortion access in Texas is still at dire risk.
The cases that the Supreme Court were hearing all concerned the very slim legal question over whether anyone could sue someone they suspect has aided or abetted an abortion. While the Supreme Court could ultimately strike that part of SB 8 down, the law still bans abortion after essentially six weeks in Texas.
Next month the Supreme Court is also hearing another abortion-related case: Dobbs v. Jackson Women’s Health Organization. That case, which is a direct challenge to Roe v. Wade, concerns Mississippi’s fifteen week abortion ban.
Both Hearron and Murray acknowledged the grim outlook on the horizon even if yesterday’s arguments seemed persuasive. “We are heartened by the vigorous questions of today’s hearings, but the reality on the ground is that until SB 8 is stopped by some sort of injunction, patients are still suffering irreparable harm in Texas,” said Murray.
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