EFG Magazine

Get alerts for live updates.

Adam Liptak

Nov. 1, 2021, 1:24 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 1:24 p.m. ET

Image

Capitol Police officers stand guard as abortion rights demonstrators participate in a protest at the Supreme Court.
Capitol Police officers stand guard as abortion rights demonstrators participate in a protest at the Supreme Court. Credit... Tom Brenner for The New York Times

After almost three hours of lively arguments, a majority of the justices seemed inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a challenge to a Texas law that has sharply curtailed abortions in the state.

That would represent an important shift from a 5-to-4 ruling in September that allowed the law to go into effect. Justices Brett M. 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.

Justice Kavanaugh said that might amount to closing a loophole. Justice Barrett said the law was structured to prevent the providers from presenting a “full constitutional defense.”

Such a decision would not conclude the case or address whether the law itself is constitutional. Instead, it would return the case to lower courts for further proceedings. It was, moreover, not clear whether the court would temporarily block the law while the case moved forward if it allowed either the providers or the administration to sue.

The law, which went into effect on 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.

Charlie Savage

Nov. 1, 2021, 1:24 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 1:24 p.m. ET

Image

Texas’ solicitor general, Judd Stone, left; an attorney for the Center for Reproductive Rights, Marc Hearron, center; and the federal solicitor general, Elizabeth Prelogar, right.
Texas’ solicitor general, Judd Stone, left; an attorney for the Center for Reproductive Rights, Marc Hearron, center; and the federal solicitor general, Elizabeth Prelogar, right. Credit... Federalist Society; Dayna Smith/Center for Reproductive Rights; Shutterstock

The United States solicitor general and a lawyer for Texas abortion providers urged the Supreme Court on Monday to block enforcement of the state’s anti-abortion law, while a top lawyer for Texas told the justices they had no power to do so.

Over about three hours of arguments that sometimes delved into highly technical matters, the Supreme Court wrestled with whether it could or should issue an injunction barring Texas state courts from hearing suits filed under the law, known as Senate Bill 8.

The law, which bars most abortions after about six weeks, has raised novel issues because it is not clear whom a court could order not to carry it out. It relies not on government officials but on private citizens to enforce it, with $10,000 bounties for successful lawsuits.

Arguing that the Texas law was blatantly unconstitutional and was chilling people’s exercise of their rights, Marc A. Hearron, a lawyer with the Center for Reproductive Rights, which represents the providers, said the Supreme Court should enjoin clerks of Texas state courts from accepting such lawsuits.

But Texas’ solicitor general, Judd Stone II, argued that it would be unconstitutional for the federal judiciary to enjoin a state court or state judge from hearing such lawsuits. He cited a 1908 case called Ex parte Young, which said state officials could be sued in federal court to block enforcement of unconstitutional state laws but also said that this mechanism could not be used to “restrain the state court from acting in any case brought before it.”

The federal solicitor general, Elizabeth Prelogar, argued that the principle laid out in the 1908 case did not apply to the situation raised by the Texas state law, which she said was written to evade judicial review and thwart the supremacy of federal law.

“I recognize that this seems like a novel case, and that’s because this is a novel law,” Ms. Prelogar said. “But we do not think that a recognition here that the United States can intervene to try to protect the supremacy of federal law would open the floodgates” in ordinary state court proceedings.

Nov. 1, 2021, 1:23 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 1:23 p.m. ET

Video

transcript

transcript

Protesters Gather as Court Hears Arguments on Texas Abortion Law

Abortion rights demonstrators and opponents of abortion rights rallied outside the Supreme Court as justices heard challenges to a Texas law that bans most abortion after about six weeks with no exceptions for pregnancies resulting from rape or incest.

“We have to continue to speak out.” “Abortion saves lives.” “[Unclear] know best — we know what our capacity is.” “[unclear] for my Black people.” [cheering] “[unclear] so much to listen to me.” “Hey hey, ho ho, Roe v. Wade has got to go. Hey hey, ho ho —” “Abortion hurts women.” [unclear] “Pro-life, pro-woman.”

Video player loading

Abortion rights demonstrators and opponents of abortion rights rallied outside the Supreme Court as justices heard challenges to a Texas law that bans most abortion after about six weeks with no exceptions for pregnancies resulting from rape or incest. Credit Credit... Tom Brenner for The New York Times

Dozens of protesters gathered in front of the Supreme Court during arguments on Monday, as the justices heard challenges to the Texas law that prohibits abortions after about six weeks of pregnancy.

Demonstrators from around the country gathered at the foot of the steps, most carrying signs supporting abortion rights and marking the sidewalks in chalk as the arguments, which were streamed live, played from speakers.

“It’s really sad to think about what women across my state are going through at the moment,” said Abby Springs, a senior at the University of Texas, Austin, who is studying in Washington for a semester. “As we speak, right now, women are having to drive hours and hours and hours across state lines just to be able to access an abortion.”

Valerie Reyes-Jimenez, a community organizer from New York City, said she arrived on a bus this morning with demonstrators from Housing Works, a nonprofit that supports efforts to end AIDS and homelessness. She said she thought the Texas law was especially harmful to women’s health because of the six-week timeline.

Image

Officers stand guard as abortion rights supporters participate in a protest at the Supreme Court.
Officers stand guard as abortion rights supporters participate in a protest at the Supreme Court. Credit... Tom Brenner for The New York Times

“I had an abortion when I was 13, and I have no regrets about it,” she said, adding that she had been about 10 weeks pregnant at the time. “I am a mother and a grandmother today, but I knew that was the right decision for me.”

Tens of anti-abortion demonstrators were also gathered before the Supreme Court, many dressed in red and carrying red heart-shaped balloons to show their support for the Texas law, which is known as the “heartbeat act” because it bans abortion after cardiac activity is detected. Many were organized to attend by the Texas attorney general’s office and declined to speak with reporters.

Christopher Palmer, 20, said he came to Washington from New Jersey with students from Rider University’s students for life organization to show that the Texas abortion law had support from young people.

“I think the Supreme Court should allow the State of Texas to make a decision,” adding that he and his organization wanted to see the court enable “ending abortion in America, starting with Texas and going state by state.”

Many of the abortion-rights demonstrators said they were planning to be back at the court on Dec. 1, when the court is scheduled to hear a case on Mississippi’s ban on abortions after 15 weeks of pregnancy.

Katie Benner

Nov. 1, 2021, 12:59 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:59 p.m. ET

Katie Benner

covers the Justice Department

Justice Sotomayor asked Mitchell why those who sue abortion providers under S.B. 8 are not agents of the state. He argued that there was no agency relationship “because the state is statutorily forbidden” from enforcing the law and therefore cannot act with private citizens who may feel moved to file a private lawsuit.

Katie Benner

Nov. 1, 2021, 12:46 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:46 p.m. ET

Katie Benner

covers the Justice Department

Justice Kagan also seemed to reject Stone’s assertion that the United States is overstepping its boundaries in bringing its suit. If the Supreme Court upholds S.B. 8, “any state can effectively nullify any federal constitutional law,” she said.

J. David Goodman

Nov. 1, 2021, 12:44 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:44 p.m. ET

J. David Goodman

Houston bureau chief, covering Texas

Jonathan Mitchell, a former solicitor general for Texas, is now speaking. He was a main architect of the unique structure of the Texas abortion law, which has been at the heart of the debate today.

Adam Liptak

Nov. 1, 2021, 12:39 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:39 p.m. ET

Adam Liptak

covers the Supreme Court

Justice Elena Kagan says most cases claiming a chilling effect are speculative. Here, she says, “we know exactly what has happened,” referring to the sharp curtailment of abortions in the state. Here is some data behind that.

Katie Benner

Nov. 1, 2021, 12:39 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:39 p.m. ET

Katie Benner

covers the Justice Department

Justice Kagan engaged in a heated exchange with Stone, pushing back on his assertions that it was still a hypothetical that S.B. 8 had all but ended abortion in Texas. “The provisions in this law have prevented every woman in Texas from exercising a constitutional right, as declared by this court,” she said. “That’s not a hypothetical. That’s an actual.”

Adam Liptak

Nov. 1, 2021, 12:36 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:36 p.m. ET

Image

Justice Stephen G. Breyer.
Justice Stephen G. Breyer. Credit... Erin Schaff/The New York Times

Justice Stephen G. Breyer, who is 83 and is the senior member of the court’s liberal wing, has written opinions striking down laws that restrict abortions in Nebraska, Texas and Louisiana. In the Nebraska opinion in 2000, Justice Breyer wrote that the debate over abortion involved “virtually irreconcilable points of view.”

“Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it,” he wrote. “Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”

In September, when the Supreme Court refused to block the Texas law, Justice Breyer dissented.

“Texas’ law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy,” he wrote. “But a woman has a federal constitutional right to obtain an abortion during that first stage.”

He acknowledged some of the procedural difficulties in the case, but he said the court had the power to act and should not hesitate to be creative. “It should prove possible to apply procedures adequate to that task here,” he wrote.

Nov. 1, 2021, 12:32 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:32 p.m. ET

Ruth Graham

covers religion, faith and values

Whatever happens to S.B. 8, the anti-abortion movement has been successful at curtailing practical access to the procedure in Texas. There are about 24 abortion clinics in the state, compared to more than 200 “crisis pregnancy centers” aligned with anti-abortion organizations. And patients must receive an ultrasound at least 24 hours before obtaining an abortion, requiring two trips to a facility.

Adam Liptak

Nov. 1, 2021, 12:28 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:28 p.m. ET

Image

Justice Sonia Sotomayor said the Supreme Court’s refusal to block the law “inflicts significant harm on the applicants and on women seeking abortions in Texas.”
Justice Sonia Sotomayor said the Supreme Court’s refusal to block the law “inflicts significant harm on the applicants and on women seeking abortions in Texas.” Credit... Al Drago for The New York Times

Four justices issued dissents when the Supreme Court refused to block the Texas law, but Justice Sonia Sotomayor’s opinion was by many measures the most striking.

“The court’s order is stunning,” she wrote. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

“Because the court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas,” she wrote, “I dissent.”

Almost two months later, the court again refused to take immediate action against the law and instead agreed to fast-track appeals from abortion providers in the state and the Justice Department, giving rise to Monday’s arguments. Justice Sotomayor was the only member of the court to issue a dissent from its refusal to block the law in the meantime.

“For the second time, the court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas,” she wrote. “For the second time, the court declines to act immediately to protect these women from grave and irreparable harm.”

Charlie Savage

Nov. 1, 2021, 12:27 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:27 p.m. ET

Image

Justice Rufus W. Peckham wrote the majority opinion in Ex Parte Young.
Justice Rufus W. Peckham wrote the majority opinion in Ex Parte Young. Credit... Library of Congress/Corbis/VCG via Getty Images

As the Supreme Court struggled on Monday with whether it could or should block Texas courts from hearing lawsuits by private citizens against abortion providers under the state’s novel anti-abortion law, a 1908 case called Ex Parte Young kept coming up.

That case involved a dispute over a Minnesota law on railroad rates and a federal lawsuit against the state’s attorney general, Edward Young. The Supreme Court held that state officials could be sued in federal court to prevent them from trying to enforce unconstitutional laws.

However, the court’s majority decision, written by Justice Rufus W. Peckham, said that this mechanism could not be used to “restrain the state court from acting in any case brought before it either of a civil or criminal nature.”

He added: “An injunction by a federal court against a state court would violate the whole scheme of this government, and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined.”

The twist raised by the Texas anti-abortion case is that state officials are forbidden to enforce the law, which conflicts with the Supreme Court’s current abortion rights rulings. Instead, the law is enforced by private citizens’ filing lawsuits against abortion providers, or against people who assist them or women seeking abortions.

The plaintiffs — the Justice Department and abortion providers in Texas — have sought to address that twist by seeking an injunction barring state courts from hearing such cases.

Nov. 1, 2021, 12:25 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:25 p.m. ET

Image

Demonstrators in favor of the abortion legislation at the Capitol in Austin, Texas.
Demonstrators in favor of the abortion legislation at the Capitol in Austin, Texas. Credit... Jay Janner/Austin American-Statesman, via Associated Press

For anti-abortion activists in Texas, this fall has been a taste of the future they have long dreamed about.

“This is really a glimpse of what a post-Roe Texas is going to look like,” said John Seago, legislative director for Texas Right to Life, the state’s largest anti-abortion group. “The last two months have been a victory for the pro-life movement.”

On Monday the Supreme Court will take up challenges to Texas’ new anti-abortion law, the most restrictive in the nation, exactly two months after it took effect.

The law, which in effect banned abortion after about six weeks of pregnancy, had an immediate impact on the availability and practice of the procedure in the state, where access to the procedure had already been declining for years. Texas has about 24 abortion facilities, down from 40 less than a decade ago. When the new law, known as Senate Bill 8, went into effect, those clinics said they would immediately comply, with many pausing all abortion services while they sorted out the legal implications of the law. The number of abortions in the state dropped 50 percent in September 2021 compared to the same month in 2020, according to an analysis released on Friday by researchers at the University of Texas at Austin.

Texas has been the center of the abortion debate since Norma McCorvey, also known as Jane Roe, sought an abortion in Dallas in 1969. She wasn’t able to procure the procedure, but her attempt led to the landmark 1973 Roe v. Wade Supreme Court case, which legalized most abortions.

Mr. Seago planned to be in Washington on Monday for the Supreme Court oral arguments. He said his organization was optimistic about the outcome, based in part on the fact that the court had declined to pause the law while the justices considered its validity.

Not all activists were as confident. Joe Pojman, the executive director for Texas Alliance for Life, said he foresaw a possible defeat in the fact that the court had agreed to hear the case so quickly. He planned to tune into the hearing from his office in Austin.

“We have not known each day when the sun rises if the courts will change,” he said. “But each day we consider a victory.”

Sabrina Tavernise

Nov. 1, 2021, 12:25 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:25 p.m. ET

Image

Jennifer Reince, the patient care coordinator at the Trust Women clinic in Oklahoma City, spoke with a woman in Texas who was seeking an abortion.
Jennifer Reince, the patient care coordinator at the Trust Women clinic in Oklahoma City, spoke with a woman in Texas who was seeking an abortion. Credit... Nick Oxford for The New York Times

When the new Texas abortion law took effect in September, the impact was swift. With abortions largely prohibited in the state after about six weeks, Texans with unwanted pregnancies were forced to make decisions quickly. Many opted to travel out of state for the procedure.

As a result, clinics in Oklahoma and beyond quickly filled up with appointments from Texans.

“We had every line lit up for eight hours straight,” said Jennifer Reince, who works the front desk phones at a clinic in Oklahoma City, describing the first week the measure was in force.

And as clinics in surrounding states filled up, appointments were being scheduled for later and later dates, making the procedures more costly. Abortions at the Trust Women Oklahoma City clinic range in cost from $650 for earlier stages to $2,350 for later stages. Financial assistance is also available.

In the weeks immediately after the Texas law got underway, about half the patients at the Hope Medical Group for Women in Shreveport, La., were from Texas, up from about a fifth before the law. At Little Rock Family Planning Services, in Arkansas, Texas patients made up 19 percent of the caseload, compared with less than 2 percent in August. Oklahoma does not require two trips to a clinic to get an abortion in most cases, so it became a common choice. At Trust Women, patients came from as far away as Galveston and Corpus Christi.

Other women are having to carry their pregnancies to term.

Marva Sadler, senior director of clinic services at Whole Woman’s Health, which operates four clinics in Texas, said she believed that many patients were not able to arrange child care or take time off work without losing their jobs to travel to other states.

“I think a majority of women are being sentenced to being parents,” she said.

Michael S. Schmidt

Nov. 1, 2021, 12:04 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:04 p.m. ET

Image

Jonathan F. Mitchell, a onetime Supreme Court clerk and former solicitor general of Texas, has emerged as the conceptual force behind the Texas abortion law.
Jonathan F. Mitchell, a onetime Supreme Court clerk and former solicitor general of Texas, has emerged as the conceptual force behind the Texas abortion law. Credit... via Jonathan F. Mitchell

Jonathan F. Mitchell represents a new iteration of the anti-abortion campaign.

Instead of focusing on stacking the courts with anti-abortion judges, trying to change public opinion or pass largely symbolic bills in state legislatures, Mr. Mitchell, 45, has spent the last seven years honing a largely below-the-radar strategy of writing laws deliberately devised to make it much more difficult for the judicial system — particularly the Supreme Court — to thwart them, according to interviews.

Never an especially prominent, popular or financially successful figure in the conservative legal world — he was best-known for litigation seeking to limit the power of unions — Mr. Mitchell is only now emerging as a pivotal player in one of the most high-profile examples yet of the erosion of the right to abortion.

The oldest of seven brothers, he was raised in a religious Christian home in Pennsylvania. He attended Wheaton College, a small school in Illinois that “prepares students to make an impact for Christ,” according to its website. Friends refrain from calling him on Sundays, as they know he spends at least several hours at church.

As his role has started to become more widely known, he has drawn intense criticism from abortion rights supporters not just for restricting access to the procedure but also for what they see as gaming the judicial system through a legislative gimmick they say will not withstand scrutiny.

But Mr. Mitchell, a onetime clerk to Justice Antonin Scalia who has already seen one anti-abortion law that he worked on gutted by the Supreme Court, vowed that if he ever had the chance to help develop another restricting measure, he would ensure that it survived the high court’s review.

The audacious legislative structure that he conceived of — built around deputizing ordinary citizens to enforce it rather than the state — has flummoxed lower courts and sent the Biden administration and other supporters of abortion rights scrambling for some way to stop it.

Charlie Savage

Nov. 1, 2021, 12:03 p.m. ET Nov. 1, 2021

Nov. 1, 2021, 12:03 p.m. ET

Charlie Savage

Prelogar: “I recognize that this seems like a novel case, and that’s because this is a novel law. But we do not think that a recognition here that the United States can intervene to try to protect the supremacy of federal law would open the floodgates” in ordinary state court proceedings.

Adam Liptak

Nov. 1, 2021, 11:59 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:59 a.m. ET

Image

Justice Samuel A. Alito at Georgetown University Law Center.
Justice Samuel A. Alito at Georgetown University Law Center. Credit... Drew Angerer for The New York Times

As a government lawyer, as an appeals court judge and on the Supreme Court, Justice Samuel A. Alito Jr. has consistently opposed legal protections for abortion. He was in the majority in September when the court refused to block the Texas law.

Applying for a promotion as a young lawyer in the Reagan administration in 1985, he wrote that he was proud to have helped advance “legal positions in which I personally believe very strongly.” One of those positions, he said, was that “the Constitution does not protect a right to an abortion.”

As an appeals court judge, he voted in 1991 to uphold a Pennsylvania law that required women seeking abortions to notify their husbands. “Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus,” he wrote. The U.S. Supreme Court rejected his position the next year in Planned Parenthood v. Casey.

In a combative speech at Notre Dame in September, he defended the Supreme Court’s decision not to block the Texas law, saying it turned on procedural issues and had nothing to do with the fate of Roe v. Wade.

Adam Liptak

Nov. 1, 2021, 11:57 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:57 a.m. ET

Image

Chief Justice John Roberts in the Capitol during the impeachment trial of President Donald Trump.
Chief Justice John Roberts in the Capitol during the impeachment trial of President Donald Trump. Credit... Pete Marovich for The New York Times

When the Supreme Court refused to block the Texas abortion law in September, Chief Justice John G. Roberts Jr. voted with the court’s three liberal members in dissent. That was in one sense a surprise: There is no reason to believe that the chief justice, a conservative appointed by President George W. Bush, is a committed supporter of abortion rights.

But he does view himself as the custodian of the court’s prestige and authority, and he has said that the court should not lightly overrule its precedents. Last year, he voted with what was then the court’s four-member liberal wing to strike down a restrictive Louisiana abortion law, saying a recent precedent — one from which he had dissented — required the result.

In his dissent in September, Chief Justice Roberts wrote that he would have blocked the Texas law while appeals moved forward.

“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

Adam Liptak

Nov. 1, 2021, 11:56 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:56 a.m. ET

Adam Liptak

covers the Supreme Court

These arguments, which may be the first ones many Americans have heard, are a good look at how the justices handle the most public part of their work. Their questions are varied, probing and sophisticated. And they are in large part talking to each other. 

“We don’t talk about cases before the argument,” Chief Justice Roberts once said. “When we get out on the bench, it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.”

J. David Goodman

Nov. 1, 2021, 11:55 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:55 a.m. ET

J. David Goodman

Houston bureau chief, covering Texas

The main sponsors of the Texas abortion law, State Senator Bryan Hughes and State Representative Shelby Slawson, both Republicans, are in Washington and are expected to speak outside the Supreme Court after the arguments conclude, along with the Texas attorney general, Ken Paxton.

Adam Liptak

Nov. 1, 2021, 11:42 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:42 a.m. ET

Adam Liptak

covers the Supreme Court

Why was there discussion of New York Times v. Sullivan, the landmark libel case? The point was that The Times faced crippling liability in state courts in Southern states during the civil rights era. But the Sullivan case followed the usual pattern: The paper was sued in state court, lost and then appealed, winning in the Supreme Court. A lawyer for Texas said that was also the right way to challenge the Texas law — not by suing in federal court beforehand.

Adam Liptak

Nov. 1, 2021, 11:41 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:41 a.m. ET

Image

Justice Clarence Thomas, center, at the swearing-in ceremony for Brett M. Kavanaugh.
Justice Clarence Thomas, center, at the swearing-in ceremony for Brett M. Kavanaugh. Credit... Tom Brenner for The New York Times

At his confirmation hearings in 1991, Justice Clarence Thomas said, to the astonishment of many, that he had never discussed Roe v. Wade, the 1973 decision that established a constitutional right to abortion, even though it was issued while he was a student at Yale Law School.

The next year, he dissented in Planned Parenthood v. Casey, in which the majority reaffirmed the core of the Roe decision. Justice Thomas joined opinions saying Roe was “plainly wrong” and “should be overruled.”

In his memoir, he reconciled his 1992 vote with his statements at his confirmation hearings the year before. “By then,” he wrote, “I’d had ample time to study Roe in detail, and concluded that it was wrongly decided and should now be overruled.”

Justice Thomas, the longest serving member of the current Supreme Court, has in the intervening decades frequently voiced opposition to constitutional protection for abortion.

“Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother,” he wrote in a 2000 dissent. “Although a state may permit abortion, nothing in the Constitution dictates that a state must do so.”

He was in the majority in September when the court refused to block the Texas law.

Katie Benner

Nov. 1, 2021, 11:41 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:41 a.m. ET

Katie Benner

covers the Justice Department

Prelogar tells Justice Thomas that the Justice Department is not suing because Texas enacted an unconstitutional law, but because Texas deliberately structured the law to prevent federal courts from doing anything about the fact that it violates the Constitution. It’s a key distinction that Prelogar could use to show how other states could pass similar laws that undermine other constitutional rights.

Maggie Astor

Nov. 1, 2021, 11:40 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:40 a.m. ET

The basic contours of the Texas abortion law, S.B. 8, are well known: It bans abortions after cardiac activity is detectable, usually around six weeks’ gestation, and delegates enforcement responsibility to private citizens. But it contains many significant, and in some cases highly unusual, provisions beyond those basics.

I read the law in its entirety last month and consulted with two professors who have expertise in abortion jurisprudence: Mary Ziegler of Florida State University and Melissa Murray of New York University. Here are a few takeaways, though Professor Murray cautioned that parts of the law were written so vaguely that they “could reasonably be subject to a wide range of interpretations.”

  • The burden of proof is reversed. Normally, the person making an allegation — the prosecution in a criminal trial or the plaintiff in a civil trial — must prove it is true. The defendant doesn’t have to prove it is false: innocent until proven guilty. Not so under S.B. 8, which says those accused of performing or abetting abortions have “the burden of proving an affirmative defense.”

  • The law’s exception for medical emergencies is vague. Some health situations aren’t clear-cut, like a cancer patient who can’t receive chemotherapy while pregnant and whose disease could become untreatable within a few months. Doctors must decide whether their patient qualifies, knowing they could be sued by anyone who disagrees.

  • People can be sued for intent even if they never act. The law doesn’t specify what counts as intent, leaving open the possibility that a person could be sued for, say, researching the locations of abortion clinics or viewing an advocacy group’s donation page.

  • There are no geographic limitations. Residents of other states can sue someone who helps a Texan get an abortion (in fact, the first lawsuits filed under S.B. 8 were from out-of-state residents), and they can also be sued for helping a Texan get an abortion.

  • The law puts financial burdens on defendants. A defendant who loses will have to reimburse the plaintiff’s legal fees. But courts are forbidden to order reimbursement of the defendant’s legal fees, meaning a person falsely accused would still be on the hook for the cost of their defense.

Katie Benner

Nov. 1, 2021, 11:37 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:37 a.m. ET

Justice Stephen G. Breyer read back a list of six reasons that Marc A. Hearron, a lawyer with the Center for Reproductive Rights, which represents the providers, gave for why private lawsuits brought under S.B. 8 are unlike typical tort suits:

  • Anybody can sue. (A reason that Justice Breyer called “debatable.”)

  • Anyone can sue anywhere in Texas, a large state.

  • A lawsuit brought under S.B. 8 does not stop other plaintiffs from suing the same defendant.

  • The legal fees are serious.

  • The $10,000 paid to successful plaintiffs is serious.

  • Defendants have only a limited ability to argue that a lawsuit presents an undue burden.

Mr. Hearron agreed with the justice’s summary and added two more reasons:

  • Damages awarded in successful lawsuits are not tied to the amount of the harm, as is the case in most tort suits.

  • S.B. 8 provides for a mandatory injunction to prevent further violations of the law, rather than to prevent more harm to the plaintiff.

Katie Benner

Nov. 1, 2021, 11:32 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:32 a.m. ET

Katie Benner

covers the Justice Department

Elizabeth Prelogar, the nation’s newly confirmed solicitor general, is now presenting arguments before the Supreme Court.

Charlie Savage

Nov. 1, 2021, 11:31 a.m. ET Nov. 1, 2021

Nov. 1, 2021, 11:31 a.m. ET

Image

Elizabeth Prelogar, the Biden administration’s newly confirmed solicitor general, will make arguments in the case on Monday.
Elizabeth Prelogar, the Biden administration’s newly confirmed solicitor general, will make arguments in the case on Monday. Credit... Shutterstock

The Biden administration’s newly confirmed solicitor general, Elizabeth B. Prelogar, is expected to argue that the Texas law conflicts with Supreme Court precedent and to urge the justices not to be deterred from saying so by the way it was drafted to avoid judicial review.

In the federal government’s brief submitted to the court, the acting solicitor general at the time, Brian H. Fletcher, wrote that “S.B. 8 was designed to nullify this court’s precedents and to shield that nullification from judicial review. So far, it has worked: The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the court has recognized for half a century.”

“Yet Texas insists,” Mr. Fletcher added, “that the court must tolerate the state’s brazen attack on the supremacy of federal law because S.B. 8’s unprecedented structure leaves the federal judiciary powerless to intervene.”