1908 Supreme Court ruling may determine Texas abortion law fate

The U.S. Supreme Court's interpretation of its own precedent regarding a 1908 lawsuit by railroad company shareholders against Minnesota's attorney general may determine the fate of a Texas law allowing private lawsuits against anyone involved with an abortion.

Abortion providers and the U.S. Department of Justice asked the court Monday to allow them to enjoin SB 8, a statute that allows private plaintiffs to sue people who help a woman get the procedure. The quirk of the law is that no state official is permitted to file a complaint, an unusual attempt to avoid review by federal courts.

U.S. Solicitor General Elizabeth B. Prelogar argued the Texas law is "designed to thwart judicial review." If successful, "no constitutional right is safe."

Marc Hearron, senior counsel for the Center for Reproductive Rights, argued that his client should be able to test the law based on the high court's century-old holding that then Minnesota Attorney General Edward T. Young could be held in contempt for trying to enforce an unconstitutional law. Hearron cited Ex Parte Young, 209 U.S. 123 (1908), which held that state officials could be sued -- and held in contempt -- in federal court for enforcing an unconstitutional law.

The Texas statute's ban on state executive officers suing does not allow SB 8 to avoid judicial review, Hearron argued. Whole Women's Health v. Jackson, 21-463 (S. Ct filed Sept. 21, 2021); United States v. Texas, 21-588 (S. Ct., filed Oct. 18, 2021).

Hearron said state judges could be barred from enforcing the law, and clerks could be enjoined from accepting SB 8 cases.

Texas Solicitor General Judd Stone said the court should not enjoin any Texas executive officer because they are not allowed to file lawsuits under the statute. The Supreme Court previously ruled 5-4 against blocking the Texas law. But two swing votes -- Justices Brett M. Kavanaugh and Amy Coney Barrett, appointees of President Donald Trump -- appeared inclined to allow the clinics to pursue their lawsuit.

Monday's arguments did not address the merits of the Texas law. Even if the court rules for the abortion providers, the justices did not indicate if or when the statute would be enjoined.

Kavanaugh cited a brief filed by Erik S. Jaffe, an attorney with Schaerr Jaffe representing the Firearms Policy Coalition, raising concerns that other states might adopt Texas-style laws to attack Second Amendment and other rights.

Stone conceded that this could happen but said Congress could pass laws to protect gun rights.

Kavanaugh raised the possibility that a state could pass a law allowing individuals to sue anyone who sells an AR-15 firearm for $1 million. "We can assume this will be across-the-board for all constitutional rights," he said.

The Texas law, he said, is a "loophole that's been exploited here or used here. Should we extend the principles of Ex Parte Young to close that loophole?"

Barrett, who allowed the Texas abortion law to go into effect, also expressed misgivings.

Jaffe, in an interview, said he was pleased that his brief was cited and predicted the abortion providers would be able to challenge SB 8 in federal court even as the right to abortion may be upended by another case to be considered by the Supreme Court this year.

John C. Harrison, a professor at the University of Virginia School of Law, said in an email that Ex Parte Young is central to the SB 8 cases.

"One major question is whether the court takes that case as an application of a broad principle in favor of pre-enforcement review when review in enforcement proceedings is more difficult, or regards Young as at most a modest adaptation of standard equitable remedies that retains most of the limits that equity courts had recognized," he wrote.

SB 8 already has had a dramatic impact on the number of abortions in Texas, which dropped by half in September after the law went into effect, according to a New York Times report.