Consider This from NPR - Will The Supreme Court Rule Against The Texas Abortion Law?

Episode Date: November 3, 2021

Any ruling is months away, but this week's oral arguments provided some clues. NPR's Nina Totenberg watched them unfold. Hear more from Nina's coverage on the NPR Politics Podcast via Apple, Google, or Spotify.Also in this episode: Dr. Ghazaleh Moayedi, an OB-GYN in Texas, who told NPR pregnant people in Texas have been travelling to Oklahoma for abortions. In participating regions, you'll also hear a local news segment that will help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This message comes from Indiana University. Indiana University performs breakthrough research every year, making discoveries that improve human health, combat climate change, and move society forward. More at iu.edu slash forward. In the state of Texas, it's not just that abortions have been effectively banned. Some hospitals have changed the way they treat pregnant patients. Major hospitals across the state have made policies where they will not intervene in someone who is having a miscarriage if there are heart tones detected, unless the person is hemorrhaging or is septic.

So until they are critically ill. Dr. Gonsla Moyetti is a physician who provides abortion care as part of her practice in Texas, or at least she used to before a state law banning the procedure after around six weeks went into effect about two months ago. I have unfortunately not been able to provide abortion care in Texas since this law has gone into effect. It has been devastating, just like we expected. Moyetti told NPR that she's working more at another practice in Oklahoma, where pregnant people from Texas have been traveling to. You know, in Oklahoma City, just this week, I took care of three people from my own neighborhood here in Dallas, like literally my own neighborhood. And I took care of people

from as far as Galveston. That's about an eight or nine hour drive one way. All this is happening as the U.S. Supreme Court considers a legal challenge to the Texas law. And while the court heard oral arguments in that case this week, its conservative majority declined to suspend the Texas law in the meantime. Legal experts say basically this law is working the way it was designed to, to make legal challenges difficult. Texas just devised an absolutely brilliant law if you oppose abortions. Here's what Jessica Levinson, a professor at Loyola Law School, told NPR. I mean, they created basically a maze where there may really not be any outlets, where every time you turn, they're like, nope, sorry, do not turn, do not pass go, do not collect $100.

Consider this. The Texas law remains in effect and a Supreme Court decision is still months away. Even though no one knows which way the court will rule, this week's oral arguments provided some clues. From NPR, I'm Elsa Chang. T's and C's apply. It's Consider This from NPR. This is the second time the Texas abortion law, known as SB-8, has come before the Supreme Court. The blockbuster decision from a sharply divided Supreme Court effectively allows almost all abortions to be banned in the state of Texas. In a midnight ruling two months ago, the court voted five to four to let the law go into effect. Chief Justice John Roberts sided with the three liberal justices. In siding against the other conservative justices,

the chief justice called the Texas law unprecedented for the way it outsourced enforcement to, quote, the populace at large in order to insulate the state from questions of accountability. The law appears to contradict the Supreme Court decision in Roe v. Wade, which guarantees the right to abortion until fetal viability. Just a reminder on the details. The Texas law allows anyone who aids and abets an abortion after around six weeks to be sued by any private citizen for a minimum of $10,000. The questions before the Supreme Court this week were, first, does the federal government have the power to stop that?

And second, do abortion providers have the power to sue Texas? Some legal experts say addressing those questions may not be the way even the court's conservative justices imagined weighing in on abortion. Here's Florida State University law professor Mary Ziegler. I think the Texas case sort of landed on the justices' laps. It wasn't necessarily the case that the conservative justices wanted to take to rethink Roe. It has a lot of weird aspects to it. Ziegler said if the court upholds the Texas law, in theory, it could open the door to new laws in other states that infringe on constitutionally protected rights. Can you do that with guns? Can you do that with religious liberty? Can you do that with freedom of speech? Can you do that with birth control? This messiness is why Ziegler thinks it's more likely that the

court's conservative majority finds a way to just punt on SB8, the Texas law, and instead focus on some other more traditional challenge to abortion, like a case out of Mississippi known as Dobbs v. Jackson Women's Health. The court is scheduled to hear arguments in that case next month. I think there would be an option that might be attractive to the court, which would be to use the SB8 case as political cover for whatever it's going to do in Dobbs and essentially say we're uncomfortable with SB8 or we think that Justice Department can bring this challenge, something that lets them look less partisan, given that they've been very anxious about appearing partisan. We'll hear argument next in case 21-588, United States versus Texas. General Prelogar.

Mr. Chief Justice, and may it please the court. Now, like we mentioned, any Supreme Court ruling in the Texas abortion case is still months away. But Monday's oral arguments offered some additional clues about how the justices may rule. NPR legal affairs correspondent Nina Totenberg was listening and watching at the Supreme Court that day. And here's how it went down. The court heard arguments from not just abortion providers, but from the federal government, which intervened in the case contending that part of its job is to ensure that state laws do not nullify the Supreme Court's constitutional rulings. The Biden administration's new solicitor General, Elizabeth Prelogar,

summarized the case this way. There has never been a law exactly like this one. No state has ever sought to challenge the supremacy of federal law and keep the courts out of the equation in quite the same way. But the justices, both liberal and conservative, saw her argument as potentially giving the federal government unprecedented power to intervene in state policies. Chief Justice Roberts. You say this case is very narrow, it's rare, it's particularly problematic, but the authority you assert to respond to it is as broad as can be. It's equity. Part of the problem in the case is what Justice Kagan referred to as the procedural morass that the court has gotten itself into. Here, for example, is Justice Breyer, one of the court's liberals. There are four billion court suits in the United States, okay?

And probably in three billion of them, somebody thinks something's unconstitutional. All right, so can they all sue the judge? Everybody goes into federal court? Sues the judge? And the state court? All right, what's the difference between this case, where you think he's an enforcer, and four billion other cases where you've read their briefs? You understand their argument.

What's your response to it? And why, asked Justice Alito, one of the court's conservatives, shouldn't these cases be litigated in the state's courts first? It's unprecedented, and it is contrary to our system of federalism, to enjoin a state judge even from hearing a case. So your answer is one federal judge can't enjoin another federal judge, but a federal judge can enjoin state judges because they're lower creatures. That's the answer. But as much as the conservative members of the court appeared hostile to the federal government's intervention, three of them, Kavanaugh and Barrett, both Trump appointees, and Chief Justice Roberts, indicated real doubts about the Texas law. Kavanaugh asked Texas Solicitor General Judd Stone whether if the court were to in the future

invalidate some of its abortion precedents, the clinics in Texas would be liable for abortions that took place in the past. Are you saying that the state that could then reach back and retroactively or allow suits that would reach back and retroactively impose liability on entities that were committing lawful acts as of the time? It would be private plaintiffs again, Your Honor. But of course— Is that a yes? Yes, Your Honor. Yes. Kavanaugh looked incredulous.

Millions and millions retroactively imposed, even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken, right? Undoubtedly, Your Honor. Justice Barrett? I just have one question. Justice Barrett also expressed skepticism about the breadth of the law and the way it was designed to prevent review by the federal courts. Prodded by all the justices, the Texas Solicitor General said that neither the federal government nor the abortion providers can seek review of the state law now. Rather, he maintained that cases must first be litigated by the state courts. Justice Kagan responded that if there's no immediate recourse when a state enacts a patently unconstitutional law. Essentially, we would be inviting states, all 50 of them,

with respect to their unpreferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights. There's nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don't like, go ahead. A decision in the case is expected by summer. That is NPR legal affairs correspondent Nina Totenberg. To hear more from Nina on the Texas abortion case, listen to her on the NPR Politics podcast. There's a link in our episode notes. It's Consider This from NPR. I'm Elsa Chang.