While the lawyers will argue over procedure, the overriding question is whether the conservative court will stand in the way of a state’s bid to stop abortions. So far, the answer has been no.
For the third time, a divided Supreme Court will consider the Texas law that has stopped most abortions in that state. This time, the court is not ruling on the law’s constitutionality but deciding whether abortion providers and the Biden administration can sue to block it in federal court.
The Texas Heartbeat Act, also known as Senate Bill 8, says it is illegal to perform an abortion after about six weeks of a pregnancy but gives the state no direct role in enforcing that ban. Instead, it authorizes private lawsuits in state courts against doctors or clinic owners who violate its provisions.On Sept. 1, four members of the high court, including Chief Justice John G. Roberts Jr.
Prelogar’s argument rests on the idea that federal law is, as the Constitution states, the “supreme law of the land.” Yet throughout its history, the Supreme Court has shielded states from being sued directly. States are said to have “sovereign immunity” unless Congress has acted to waive it. Typically, lawyers rely on this section of the 1871 act to sue state or local officials who are enforcing an unconstitutional law. But in this instance, the abortion rights advocates were not sure who to sue. They could not point to particular state officials or to the unknown private individuals who may sue an abortion doctor. As a fallback, they named state judges who might have to rule on a suit.
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