Supreme Court considers ‘chilling effect,’ enforcement of Texas abortion law

It has been two months since the nation’s toughest restrictions on abortion took effect in Texas, effectively ending access to abortion in the state. A case against the law has once again reached the highest court in the land. John Yang reports on how the case got to the Supreme Court again and what could lie ahead.

Read the Full Transcript

  • Judy Woodruff:

    Two months ago today, the nation's toughest restrictions on abortion took effect in Texas, effectively ending access to the procedure there.

    Today, that law reached the highest court in the land again.

    John Yang begins our coverage by reminding us how we got here.

  • John Yang:

    The law bans abortions as soon as ultrasounds detects a flutter of cardiac activity. The only exception is for a woman's medical emergency. There are none for rape or incest.

    Marva Sadler, Director of Clinical Services, Whole Woman's Health: The vast majority of women by the time they even know they are pregnant will not be eligible for an abortion in the state of Texas at this point.

  • John Yang:

    Last month, the "NewsHour" visited Marva Sadler at the nonprofit Whole woman's Health clinic in Austin, where she is director of clinical services.

    The lobby of the abortion provider was empty and staff feared legal risks for just working there. That is because the law is enforced by private citizens who are empowered to bring civil suits against anyone for even helping a woman get an abortion. And if the suit is successful, the person who brought it gets a cash award.

  • Marva Sadler:

    We have a $10,000 bounty on our heads now.

  • John Yang:

    In September, a five-justice majority of the Supreme Court allowed the law it to remain in effect while being challenged in the courts.

    Rebecca Parma, Texas Right to Life: A pregnant woman can't be sued under the law.

  • John Yang:

    Rebecca Parma is senior legislative associate for Texas Right to Life, the anti-abortion group that helped draft the law.

  • Rebecca Parma:

    This is holding the abortion industry accountable to make sure they're not profiting off killing pre-born children.

  • John Yang:

    Today's challenges to the law were brought by Sadler's Whole Woman's Health and the Biden administration.

    This is the first abortion case for a Supreme Court reshaped by the death of Ruth Bader Ginsburg and the addition of three justices nominated by President Donald Trump.

    Marcia Coyle, chief Washington correspondent for "The National Law Journal," was in the courtroom today for oral arguments. And she is in the studio now.

    Marcia, welcome.

    And we should make clear at the outset that today's arguments were not about abortion rights, per se. What were they about?

    Marcia Coyle, "The National Law Journal": John, they really boiled down to whether — well, who can sue to challenge this law, and whom do you sue?

    You have the United States saying it has a right to sue the state of Texas. And you have the abortion clinic Whole Woman's Health saying it has a right to sue state court judges, state court clerks, the attorney general and others who may try to enforce this law.

    So that is what we were hearing today for nearly three hours of arguments, two separate cases joined by the fact that both involved Texas' anti-abortion law.

  • John Yang:

    And the justices really sort of probed the limits of the arguments on both sides.

    At one point, Chief Justice John Roberts asked the Texas solicitor general about that provision in the law that gives someone who successfully brings a suit $10,000. Let's take a listen.

    John Roberts, Chief Justice of the U.S. Supreme Court: Assume that the bounty is not $10,000, but a million dollars. Do you think, in that case, the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court process?

  • Judd Stone, Texas Solicitor General:

    Even if the amount of the sanction — again, I agree with you a million dollars would be tremendous — we can increase it further. No number would suddenly cause the federal courts to become more open.

  • John Roberts:

    It is not a question of the federal courts being more open. It's a question of anybody having the capacity or ability to go to the federal court, because nobody is going to risk violating the statute, because they will be subject to suit for a million dollars.

  • Marcia Coyle:

    John, this goes to an issue that was raised several times during the arguments. And that has to do with the chilling effect of the law on anyone seeking an abortion or trying to challenge an abortion, but mostly seeking an abortion or violating the law and getting an abortion, and what they stand to be liable for.

    It's a lot of money $10,000. It is a lot of money $1 million. And several justices were concerned about the chilling effect and how this law in particular could be used by other states not just in the abortion context, but to disfavor certain constitutional rights, gun rights, religious rights, on and on.

  • John Yang:

    And then, at another point, Justice Sam Alito pushed the U.S. solicitor general about the remedy they're seeking, which is to bar judges, Texas state judges, from even hearing these cases. Let's take a listen.

  • Samuel Alito, U.S. Supreme Court Associate Justice:

    It's unprecedented and it is contrary to our system of federalism to enjoin a state judge even from hearing a case.

    How can you enjoin a judge from performing a lawful act, which is the adjudication of a case that is filed before the judge?

  • Elizabeth Prelogar, U.S. Solicitor General:

    The state court judges in Texas are being utilized by Texas to effectively create an apparatus that is so lopsided, so procedurally anomalous, and so hostile to constitutionally protected conduct that the mere existence of the suits, no matter how the judges adjudicate them, create the constitutional harm by killing the conduct.

  • Marcia Coyle:

    This, again, is going to who can be sued under this law.

    And the United States actually sued the state of Texas, but it did get an injunction in the lower court that included not only the state of Texas, but state court judges, state court clerks, individuals who may be involved in trying to enforce the law through civil suits.

    And I think the solicitor general here was trying to show how the state can't just say, I don't enforce this law, and — when there is a whole chain of authority that can go all the way down to the fact that they have enabled private citizens to sue abortion providers, anybody who aids and abets an abortion.

  • John Yang:

    Any sense of — from the questioning, any sense of where the court is headed on this?

  • Marcia Coyle:

    I am always reluctant to do predictions here.

    But I had a sense that, as the arguments proceeded, maybe a majority of justices became more sympathetic to Whole Woman's Health, the abortion clinic, going forward with its challenge in the lower court. And that is about all that would happen if they ruled for Whole Woman's Health.

  • John Yang:

    But the court will be hearing a case that is about abortion in five weeks. And how might that affect the timing of a decision on this?

  • Marcia Coyle:

    Well, the court expedited, really sped up how it briefed and heard the arguments today in these two cases.

    On December 1, they take up Mississippi's 15-week abortion ban, in which the state of Mississippi has explicitly asked the Supreme Court or urged it to overturn its abortion rights decisions Roe and Planned Parenthood vs. Casey.

    So, I don't know. I would expect that maybe the court will issue a decision in today's cases fairly quickly, since they can deal with the true challenge to Roe and Casey in the Mississippi case later.

  • John Yang:

    Marcia Coyle, we will be talking about those cases coming up. Thank you very much.

  • Marcia Coyle:

    My pleasure, John.

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