Jay Sekulow and ACLJ Legal Team Analysis and Reaction to Supreme Court Argument in Texas Abortion Cases

The pro-life legislation out of Texas is at the Supreme Court right now. There are two cases – one being the United States v. Texas brought by President Biden’s Department of Justice (DOJ) and the other brought by the abortion industry, Whole Women’s Health v. Jackson. As we’ve told you, this unique pro-life law bans abortions after the six-week mark or when a heartbeat has been detected. One of the distinctive aspects of the law is that it allows private citizens to enforce the law by suing abortion clinics who perform abortions.

This is not a direct challenge to Roe v. Wade. We will see that challenge argued before the Supreme Court on December 1st, with the Dobbs vs. Jackson Women’s Health Organization case. However, this is a big case because states are beginning to develop unique laws to protect the unborn. We’ve filed an amicus brief at the Supreme Court in this case in support of the Texas law (SB 8). Since this is an emergency action, it’s possible we will be seeing a decision very quickly.

The question at the United States Supreme Court is, may the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials or all private parties to prohibit SB 8 from being enforced?

ACLJ Senior Counsel Andy Ekonomou further examined the real question in the Texas case:

We are not hearing Roe v. Wade or an expressed challenge of Roe v. Wade in the cases that are being argued before the Supreme Court of the United States today. . . . The question here really centers around how Texas has framed this unique law, which gives enforcement to private individuals to bring actions and civil actions in the state court against abortion providers and to prevent abortions from happening – not through state action, but through private action. The question now is, can a federal judge obtain injunctive relief against state court judges barring them from enforcing this law? Now, wait a minute. The Supreme Court of the United States said in the 19th century that a federal judge cannot enjoin, that is, enter an injunction against a state court judge. That is still a law today. And Texas is saying basically stay out of it until the case is litigated.

Justice Stephen Breyer, who is normally not sympathetic to the pro-life cause, even raised the issue that to go to the U.S. Supreme Court over a constitutional right that has not yet been violated is going to create havoc in the judicial situation:

You say a judge, at least in many circumstances, is an enforcer. There are 4 billion tort suits in the United States. Ok? And probably in 3 billion of them, somebody thinks something is unconstitutional. Alright? So, can they all sue the judge? Everybody goes into federal court and sues the judge? And in state court? All right. What’s the difference between this case, where you think he’s an enforcer, and 4 billion other cases where – you’ve read their briefs, alright, you understand their argument. What’s your response to it?

ACLJ Director of Policy Harry Hutchison gave his analysis on the case:

So, if you look at the underlying law, yes, it implicates the right of abortion. But it does not control abortion. That’s number one. Number two, we should keep in mind this case is largely procedural. . . . The question is largely whether a federal court can enjoin the Texas law before it is violated? So, this would be an odd circumstance. I think you would have to search high and low within the federal system to find precedent for such an action. That question was asked by the Justices of the Supreme Court today and basically neither the DOJ nor [the abortion industry] could come up with a plausible set of facts in support of their claim. So this is, at the end of the day, basically an innovative claim against very innovative legislation.

In questioning the U.S. Solicitor General, Justice Samuel Alito pointed out the abortion advocates are essentially asking the Supreme Court for a one-time rule that only applies to them:

I appreciate your point. Texas, as you say, has done everything it possibly can to try to make it difficult for abortion providers to vindicate their rights under our precedent. I get it. I think it’s a forceful argument. But I think we have to be concerned about the implications of the mechanisms you propose for providing some kind of relief. A lot of your brief and all the other briefs that have been filed against Texas in both of these cases suggest that we should issue a rule that applies just to this case, but that is inconsistent with the rule of law.

When it comes to abortion, all of the rules change. ACLJ Senior Counsel CeCe Heil described this special treatment that the abortion industry receives: 

We call it the abortion distortion. You heard it right there. Only change the rules for this case, not across the board. And what Justice Alito was saying, well, we can’t do that. If we change the rules, it changes them for everybody.  But that’s not what they are asking. They always want to be singled out and have special treatment.

This case is the prelude to the Dobbs v. Jackson Women’s Health Organization case. In that case, the Court will challenge the judicially created point of viability test which could overturn Roe v. Wade once and for all. We’ve filed three critical amicus briefs at the Supreme Court in this case that will be heard next month. We will continue to monitor these cases and provide you with updates.

Today’s full Sekulow broadcast is complete with even more analysis of the Texas cases at the Supreme Court.

Watch the full broadcast below.