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The Supreme Court heard arguments in Texas abortion law case


The U.S. Supreme Court heard nearly three hours of argument today focused on the Texas law that has effectively shut down abortions in the state. SB 8 bans abortions after about six weeks, and that's before many women know they're pregnant. The law is designed to avoid review by the federal courts because it targets private individuals. They can be sued for damages for helping someone get an abortion. NPR Legal Affairs Correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: This is the second time the novel Texas law has come before the court. Two months ago to the day, a conservative court majority in a midnight ruling refused to block the law from going into effect. The result was that abortion in the state came to a virtual halt, prompting a national firestorm. Today, 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.


ELIZABETH PRELOGAR: 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.

TOTENBERG: 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.


JOHN 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.

TOTENBERG: 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.


STEPHEN BREYER: There are 4 billion court suits in the United States, OK? And probably in 3 billion of them, somebody thinks something's unconstitutional, all right? So can they all sue the judge?

UNIDENTIFIED PERSON #1: And everybody goes in to federal court.

BREYER: Sues the judge and the state court - all right, what's the difference between this case where you think he's an enforcer and 4 billion other cases? You've read their briefs. All right. You understand their argument. What's your response to it?

TOTENBERG: And why, asked Justice Alito, one of the court's conservatives, shouldn't these cases be litigated in the states' courts first?


SAMUEL ALITO: 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?

TOTENBERG: 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.


BRETT KAVANAUGH: Are you saying that the state 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?

TOTENBERG: Yes, replied Solicitor General Stone. Kavanaugh looked incredulous.


KAVANAUGH: 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?

UNIDENTIFIED PERSON #2: Undoubtedly, Your Honor.

TOTENBERG: 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, the 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...


ELENA KAGAN: Essentially, we would be inviting states - all 50 of them - with respect to their own preferred 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.

TOTENBERG: A decision in the case is expected by summer.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF JON HOPKINS' "LOST IN THOUGHT") Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.

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