Who can sue and be sued in a battle over a Texas abortion law?

The United States government is a powerful party when it goes into federal court. Just how powerful will be tested when the Supreme Court hears arguments in the shadow of one of the most restrictive anti-abortion laws in the country.

Boiled down, the two cases before the justices Monday morning are about who can sue, who can be sued, and what can federal courts do, if anything, when a state law prohibits exercise of a constitutional right but is strategically designed to prevent federal courts from reviewing it.

The two cases were triggered by Texas’s enactment of its so-called Heartbeat Act, or S.B. 8. The act prohibits a physician from knowingly performing or inducing an abortion after cardiac activity is detected in an embryo. Cardiac activity begins at about six weeks of pregnancy and that is roughly four months before viability which is generally at 23-24 weeks of pregnancy. It is also before most women even know they are pregnant.

The Supreme Court’s landmark abortion rights decisions, Roe v. Wade and Planned Parenthood v. Casey, hold that states cannot prohibit abortions before viability. They may enact certain regulations as long as they do not impose an “undue burden” on the woman’s access to an abortion. S.B. 8’s six-week prohibition clearly violates the constitutional right to abortion as defined by the Supreme Court.

The state law has no exception for pregnancies resulting from rape or incest. Federal courts have “uniformly” blocked similar heartbeat laws by issuing injunctions against state officials charged with enforcing them. But what is different—unprecedented--about the Texas law, and what is the nub of the cases before the justices, is the law’s enforcement scheme.

State officials are the usual enforcer of state laws. But in order to evade federal court review, which the law’s drafters explicitly acknowledged was the goal, they authorized its enforcement exclusively by private citizens who would bring civil lawsuits against anyone who performs, aids or abets an abortion after six weeks of pregnancy. If a suit is successful, the person who brought the suit can collect a minimum of $10,000. State officials can’t be sued, or can they?

In one of the two cases in the Supreme Court, a Texas abortion clinic, Whole Woman’s Health, unsuccessfully tried to block the law from taking effect by suing the Texas attorney general, state judges, court clerks and others who would be involved in any lawsuits filed by individuals to enforce the law. In the other case, the United States sued Texas in its own effort to block the law.

Don’t expect to hear intense arguments over the fate of Roe and Casey. That is likely to come in December when the justices take up Mississippi’s arguments that those decisions should be overruled. Instead, the Texas arguments are primarily procedural and fundamental to the operation of our federal courts.

Lawyers in the Whole Woman’s Health case will argue whether a state can insulate from federal court review a law barring the exercise of a constitutional right by delegating enforcement authority to the general public through civil lawsuits.

Lawyers in the United States’s case have a different task. They must argue whether the United States can bring suit in federal court and get an injunction or other relief against the state, state court judges, state court clerks, other state officials, or all private individuals to stop S.B. 8 from being enforced.

If Texas is right that the answer to the first question is yes and to the second, no, then “no decision of this Court is safe,” the United States argues. “States need not comply with, or even challenge, precedents with which they disagree. On Texas’s telling, no one could sue to stop the resulting nullification of the Constitution. And although Texas is the first State to adopt this ploy, other States are already regarding S.B. 8 as a model.”

Texas, however, counters that it does not dispute the supremacy of federal law. But the supremacy clause, it argues, “does not grant a freestanding federal interest or grant of federal power to sue whenever the United States wants. Put another way, that the United States is a sovereign does not allow it to sue to vindicate citizens’ individual constitutional rights that it does not share.”

Regardless of one’s position on abortion, the Texas law should be troubling and so too the Supreme Court’s refusal to temporarily block it while these two cases moved through the lower courts and now in the high court itself.  The violation of a constitutional right, one that is nearly 50 years old and has been reaffirmed many times by the Supreme Court, is being allowed to continue.

The threat to other rights that this type of law embodies was recognized by an unusual amicus party, the Firearms Policy Coalition, which takes no position on abortion.

The coalition wrote in its amicus brief that it was interested in this case “because the approach used by Texas to avoid pre-enforcement review of its restriction on abortion and its delegation of enforcement to private litigants could just as easily be used by other States to restrict First and Second Amendment rights or, indeed, virtually any settled or debated constitutional right.”

When the justices decide these two cases, we undoubtedly will learn much about the power of the United States and the federal judiciary to protect constitutional rights when confronted with laws similar to the Texas law. But we may learn even more about this Supreme Court, which, while making this term in a sense all about abortion, is wrestling with concerns about its own legitimacy in the eyes of the public.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.