WASHINGTON AND DALLAS (CBSDFW.COM) – U.S. Supreme Court Justices fired-off numerous questions Monday, Nov. 1 about how the state’s controversial new abortion law is enforced.
They did so during an oral argument involving two lawsuits against the State of Texas: one filed by abortion providers and the other by the U.S. Justice Department.READ MORE: Cowboys Head Coach Mike McCarthy Out For Thursday Night's Game At Saints Due To Positive COVID-19 Test
The Texas Heartbeat Act, as it’s named, has prevented most abortions from being performed in the state since it took effect September 1.
Unlike most laws, which are enforced by government officials, the Texas law, also known as SB 8, is up to private citizens to enforce by filing civil lawsuits against abortion providers.
If found liable, abortion providers could pay a $10,000 penalty per procedure.
The issue is whether abortion providers must wait to file a constitutional challenge against the state law until after they violate it.
The attorney representing abortion providers who sued the state told the Justices the state’s new law seeks to do an end-run around the Constitutional rights upheld by the Court.
Under SB 8, doctors can’t perform abortions after cardiac activity is detected.
That can be around six weeks, when many women don’t know they’re pregnant.
Marc Hearron, attorney for abortion providers told the Justices, “The combined effect is to transform the state courts from a forum of protection of rights into a mechanism for nullifying them.”
Elizabeth Prelogar, the U.S. Solicitor General argued, “Texas is responsible for the constitutional violation here. It enacted a law that clearly violates this Court’s precedents. It’s designed to thwart the law by judicial review by offering bounties to the general public to carry out the state’s enforcement function.”
The Texas Solicitor General argued because civil lawsuits are used to enforce the law, state and local officials can’t be sued.
“Federal courts don’t issue injunctions against laws, but against officials enforcing laws. No Texas executive official enforces SB 8 either.”READ MORE: Dylan Molina Charged With Intoxication Manslaughter In Death Off-Duty Euless Detective Alex Cervantes, Bond Set At $300K
Texas Attorney General Ken Paxton spoke outside the court.
“I was honored to be in court today, representing that viewpoint and representing the laws of the state of Texas that we believe in the people of our state, have elected our representatives to do.”
Jeffrey Kahn, SMU Constitutional Law Professor said there were a couple of moments that stood out to him.
One included questioning by the newest Justice, Amy Comey Barrett.
“Justice Barrett was concerned that there were several provisions in in SB 8 that really are quite lopsided to try to prevent the defendant from establishing some affirmative defenses.”
Another moment Kahn mentioned came when Justice Stephen Breyer quoted former Supreme Court Justice Oliver Wendell Holmes.
“I think that what Justice Breyer was emphasizing is that when the Constitution of the United States provides certain rights, and the United States Supreme Court interprets those rights, it’s not up to the states to decide which rights are going to be enforced, which are rights are going to be avoided or prohibited or made difficult to pursue, and that’s precisely what SB 8 is all about.”
The Justices also asked if the Texas law were upheld, could other states enact similar laws involving the Constitutional rights of freedom of speech, religion, and the right to bear arms,
Professor Kahn said, “That’s a very good point, and I think that’s definitely on the minds of these Justices. There’s nothing peculiarly unique to the right to abortion, that that would prevent SB 8 from being utilized in other contexts with other constitutional rights.”
He and other legal experts have called Monday’s oral argument one of the most expedited hearings at the Suprmee Court since the disputed Bush vs. Gore Presidential election in 2000.
Professor Kahn said he thinks the court will make a quick decision about the Texas case.MORE NEWS: Little Elm High Students Back In School For 1st Time Since Walkout Got Out Of Hand 10 Days Ago
Other legal experts believe that will happen before December 1, when the Justices will hear Mississippi’s law, which is a direct challenge to Roe vs. Wade.