Supreme Court hears argument on Texas abortion ban, appears sympathetic to abortion provider's suit

The Supreme Court heard arguments Monday on challenges to the Texas law that bans most abortions after six weeks of pregnancy. Following three hours of argument presentation and questioning, a majority of the justices appeared willing to allow abortion providers in Texas to continue their challenge against the state's new law.

Defenders of the recently enacted law (S.B. 8) argued its enforcement mechanism shields it from federal court review. The state asked the high court to block a lawsuit brought in federal court by abortion clinics in Texas. Most of the justices indicated that they would be willing to allow the challenge to move forward.

However, the justices appeared less sympathetic to allowing a separate case – also argued Monday – brought by the Justice Department, to proceed. In both cases, the justices have to decide whether the entity in question (Texas abortion providers and the DOJ, respectively) have the legal right to challenge S.B. 8 and seek orders preventing state court clerks and judges from acting in response to lawsuits brought about by violations of the law, recently signed by GOP Gov. Gregg Abbott. 

Last month, the high court allowed the law to remain in place specifying that Monday's arguments would focus specifically on the way in which the Republican-led state legislature crafted the bill. 

Marc Hearron of the Center for Reproductive Rights, who is representing Texas abortion clinics, argued before the justices, "S.B. 8 is an abortion prohibition, but the issues before this court are far more sweeping to allow Texas’ scheme to stand would provide a roadmap for other states to abrogate any decision of this court with which they disagree."

Judd E. Stone II, the solicitor general of Texas argued that the federal government and abortion providers do not possess the legal grounds to sue the state of Texas in federal court. 

The justices will have to decide whether abortion providers and clinics in Texas, as well as the Department of Justice, have the legal right to challenge S.B. 8 in court and to seek orders banning state court clerks and judges from doing anything in response to the hypothetically filed suits.

In neither case is the right to an abortion the issue that is directly at stake. However, the suits argue that the law conflicts with landmark Supreme Court rulings that prevent a state from banning abortion early in pregnancy.

Outside the Supreme Court, supporters and opponents of the Texas law gathered Monday morning as oral arguments began. 

The court's decision to consider these challenges on an unusually accelerated schedule occurs as the justices prepare to hear the highly-controversial Mississippi case that will urge the court to overturn Roe v. Wade.

That case will be heard Dec. 1. Despite the accelerated track, however, the court will likely not issue its decision in such a complex case involving a novel state law until spring when a flurry of other high court decisions are revealed. Until then, the law will remain in effect.