The Texas law allows for awards of at least $10,000 for successful lawsuits against those who perform or “aid and abet” illegal abortions. Women seeking abortions cannot be sued under the law. Defendants can be sued by multiple parties for the same alleged violation.
Judd Stone II, the Texas Solicitor General, maintained the court has no grounds to enjoin state clerks and judges from docketing and hearing civil lawsuits pertaining to the law because their actions don’t constitute enforcement of the law.
However, several justices asked whether the private plaintiffs weren’t, in effect, acting as agents of the state. “Why wouldn't these private individuals be considered private attorneys generals?” Justice Clarence Thomas asked. Stone insisted that the state had no relationship to or control over private plaintiffs.
Chief Justice John G. Roberts questioned Stone about the law’s awards for successful plaintiffs. Roberts wanted to know: What if the award was $1 million, instead of $10,000? Wouldn’t that have a significant chilling effect on potential defendants?
Stone acknowledged that it likely would, but he said under such a scenario the court still wouldn’t have grounds to issue pre-enforcement relief, as the law’s challengers are requesting. It would require an act of Congress, Stone said, to give the federal judiciary greater jurisdiction over such cases.
“It's not a question of the federal courts being more open,” Roberts responded. “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'll be subject to suit for a million dollars.”
Later, Justice Elena Kagan pushed back on Stone’s argument that Congress would have to provide with the authority to intervene in such cases.
“I mean, isn't the point of a right that you don't have to ask Congress?” Kagan asked. “Isn’t the point of a right that it doesn't really matter what Congress thinks, or what the majority of the American people think, as to that right?”
Justices also questioned Jonathan Mitchell, the former Texas solicitor general credited as the chief architect of the state’s law.
“If the state is designating, whether it's ordinary citizens or the attorney general or … district attorneys, if it's designating those people to act for it, why aren't those people bound by any judgment that says, ‘State, what you're doing is unconstitutional?’” Justice Sonia Sotomayor asked Mitchell.
“Each of them is acting under the directives of the state law,” Sotomayor said. “So why aren't they acting like the state when they act?”
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Mitchell argued that the state doesn’t control these private individuals. “The state has passed a law that gives them the option to sue, and then it has washed its hands of the matter,” he said. “So there is no joint participation with the state in their decision.”
On Sept. 1 Justices Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett voted not to block the Texas law from taking effect. Chief Justice Roberts and Justices Sotomayor, Kagan, and Stephen G. Breyer dissented.