On Monday, the Supreme Court heard arguments on two cases surrounding the new Texas pro-life law.
Texas’ Heartbeat Act effectively outlaws abortion after the sixth week of pregnancy, when fetal cardiac activity can be detected. As The Daily Wire previously reported, “The Texas law allows citizens to sue abortion providers and those who ‘aid and abet’ illegal procedures for a financial reward if the lawsuit is successful.”
While the justices questioned the law on Monday, some also wondered about the Justice Department’s action in suing a state.
As the Daily Mail reported, “Chief Justice John Roberts expressed concerns that the DOJ’s case was too broad and sought ‘an injunction against the world.’”
“I share some of the concerns that have been voiced by my colleagues who say this case is very narrow, it’s rare, it’s particularly problematic,” Roberts told Elizabeth Prelogar, U.S. solicitor general. “But the authority you assert to respond to it is as broad as can be.”
“It’s hardly traditional to get injunctions against judges, injunctions against everybody, right?” Roberts said. “That’s part of the relief you seek, isn’t it? … So you’re seeking an injunction against the world?”
Justice Brett Kavanaugh also said the DOJ’s lawsuit was “unusual” and questioned what power the department had to issue a lawsuit over a state’s law. Kavanaugh also pointed to an amicus brief filed by Second Amendment proponents in support of the abortion providers who were concerned states could copy the Texas pro-life law and use it to essentially get rid of constitutional rights.
The discussion also involved a previous case from 1908 called “Ex Parte Young.”
As reported by The New York Times, in that case:
The Supreme Court held that state officials could be sued in federal court to prevent them from trying to enforce unconstitutional laws.
However, the court’s majority decision, written by Justice Rufus W. Peckham, said that this mechanism could not be used to “restrain the state court from acting in any case brought before it either of a civil or criminal nature.”
He added: “An injunction by a federal court against a state court would violate the whole scheme of this government, and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined.”
During the arguments, Justice Clarence Thomas said, “Ex parte Young makes clear that federal courts cannot enjoin state judges.”
As Fox News reported, “[Texas Solicitor General Judd] Stone argued Ex parte Young does not provide a way for federal court intervention, at least until state courts first get a say.”
The Supreme Court will reportedly be making a decision on whether the law is able to be challenged in federal court.
Last month, the Supreme Court declined to halt the law but agreed to give the two cases expedited review.
In the opinion and order, the high court stated:
Consideration of the application (21A85) to vacate stay presented to Justice Alito and by him referred to the Court is deferred pending oral argument.
In addition, the application is treated as a petition for a writ of certiorari before judgment, and the petition is granted limited to the following question: 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 S.B. 8 from being enforced.
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