Supreme Court May Allow A Challenge To Texas Abortion Restrictions To Move Forward : The NPR Politics Podcast A near-ban on abortion in Texas was designed to be hard to challenge in court, but in a hearing on Monday, many of the Supreme Court's conservative justices appeared ready to allow a challenge brought by abortion providers to move forward.

This episode: White House reporter Asma Khalid, legal affairs correspondent Nina Totenberg, and KUT reporter Ashley Lopez.

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Supreme Court May Allow A Challenge To Texas Abortion Restrictions To Move Forward

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KIM: My name is Kim (ph), and I'm a math teacher in Kansas City. I just got done passing out thank you notes to my coworkers, written by my students after a hard day and a hard year. This podcast was recorded at...


1:19 p.m. Eastern Time on Tuesday, November 2. It's Election Day, actually, for some folks.

KIM: Things may have changed by the time you hear this, but it'll still be a good day to pass on some encouragement to someone who might need it. Enjoy the show.


KHALID: Hey, there. It's the NPR POLITICS PODCAST. I'm Asma Khalid. I cover the White House.

NINA TOTENBERG, BYLINE: And I'm Nina Totenberg. I cover the Supreme Court.

KHALID: And today on the show, we've got a special guest - Ashley Lopez of KUT in Austin, where I presume the weather is not as gloomy and rainy, as cold as it is here in Washington, D.C.

ASHLEY LOPEZ, BYLINE: Oh, I am so sorry to report that in Austin it is 70 degrees and sunny today.

KHALID: (Laughter).

LOPEZ: I am very sorry.

KHALID: Slightly envious of that. Well, here in Washington yesterday, the Supreme Court weighed whether they'd allow changes over Texas' near ban on abortion to go forward. And it looks like they might. But Ashley, I want you to begin this whole conversation here by just a reminder of what exactly this Texas law does.

LOPEZ: Right. So this is a bill known as the Texas Heartbeat Act. It's one of those bills we've been seeing in state legislatures across the country that aim to restrict abortion when a fetal heartbeat is detected, when there's fetal cardiac activity, which of course, is a pretty controversial thing. You know, not all doctors agree on what cardiac activity on a sonogram tells you at certain points. But we'll just say as early as six weeks into a pregnancy, abortions are pretty much completely banned for the exception of when a pregnant person's health is in danger.

So, you know, for the most part, most people - you know, a lot of people don't find out they're pregnant until after six weeks, so a lot of people are finding themselves in a situation where they are having to go out of state or carrying an unwanted pregnancy in Texas. And it's been this way since the law went into effect on September 1.

And of course, the most notable thing about this law is how it's enforced. It's not being enforced by the state, like most abortion restrictions have been, you know, until now. But the unusual part of this law is that private citizens can sue to enforce this.

KHALID: Got it. And Nina, you know, we heard that this law has been in effect since September, so it's been a couple of months. And I want you to help us understand how exactly we got here, to the Supreme Court. Because when this law first went into effect, there was a moment for the Supreme Court to intervene, and it chose not to. So what's going on now?

TOTENBERG: Correct. So you remember in a midnight order in - I think it was just before the clock struck into September, the court declined to intervene and block the law from going into effect. And the vote was 5 to 4, with the chief justice and the court's three liberals dissenting.

And you might have thought, as you said, that that would be the end of the matter, but then came the federal government. And the federal government came in and said, well, maybe you think that these people can't come back to you, but we think we can because federal constitutional rights are at issue here. Abortion has come virtually to a halt in Texas. And the structure of this law is admittedly designed to prevent review by the federal courts. And that just can't be the case.

And so the court, I must say in somewhat of a surprise move, said, OK, we're going to hear your case, federal government, and we're also going to hear the case that we turned down before from the clinics that perform abortions and the whole women's health clinics. There are four of them in Texas. And so we're going to hear both cases. And yesterday, we heard three hours of argument in these cases.

KHALID: On both of those cases, then?

TOTENBERG: Yes, together.

KHALID: Did they find one more persuasive than the other?

TOTENBERG: Well, you know, it's really interesting 'cause I thought initially, well, maybe the federal government can do here what the clinics couldn't, and that's the reason that they took the case. But they really seemed to think that - they didn't buy the government's argument. It was the first time that the new solicitor general, the Biden administration's confirmed solicitor general, Elizabeth Prelogar, argued. And here's what she said.


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: And she got a lot of pushback from all wings of the court. You know, if we let the federal government come in and just ad hoc challenge what states are doing, we'll be here forever, basically. And there'll be no - they really were very suspicious of the kind of power that the federal government was asserting.

KHALID: So Nina, from what you're describing, it seems like the court did not necessarily find the argument coming from the federal government, from the Department of Justice, particularly convincing. Why did they not think that that was a winning strategy? And did they think that the arguments they heard coming from the clinics in Texas - were those more convincing?

TOTENBERG: The federal government, when it says to the Supreme Court, we have an interest and we wish to be heard and we think you ought to hear this case, that's a very big deal, whether it's the Trump administration or the Biden administration. The federal government is, after all - represents the government of the United States, which under the Constitution, reigns supreme; has a supremacy clause that puts federal law over state law. And it said - the government said, we want to be heard about this. We have an interest.

And I think the more the court heard from the lawyer for the government, Elizabeth Prelogar, and the more it thought about this, it thought this is an awful lot of power to give to the government, no matter who's running the government; that they can just come in on the side of one party and say, we're enforcing the constitution here, and you should pay attention to us. But the court, at the same time, looked at the complaints of the clinics, which it now sees are virtually shut down. And it also looks at the design of this law, which - the authors of the law boasted that they were keeping the federal courts from reviewing the constitutionality of a law that they had just created to prevent abortions.

And the enormity of the - what's the word I'm looking for? - the get around of the Constitution that this law was creating could certainly be applied to other things - could be applied to gun rights, could be applied to contraception, could be applied to religious rights. And that was enormously concerning to them. And I would say six members of the court were very concerned about the law.

KHALID: And concerned, to be clear, Nina, not because of where it stands, particularly and potentially chipping away Roe v. Wade, but concern in terms of how it's being used in terms of allowing private citizens to fine fellow private citizens.

TOTENBERG: And to get around - they were concerned about the fact that this law was designed so that it would never get a decision by a federal court. It was designed to get around that for years so that if you wanted to litigate this law, you would have to go through the state courts and then up to the Supreme Court. And it might take a year. It might take two. It might take three. And I think the court said to itself - at least a majority of the court said to itself, we do not want to put other rights in similar jeopardy. And that was the concern.

KHALID: So Ashley, what was the reaction to all of this out of Texas yesterday?

LOPEZ: You know, well, anti-abortion-rights groups here say they were actually pretty happy that the DOJ case doesn't seem to be something that the court is really interested in or, at least, has a lot of skepticism about. They said that was, like, a good thing in their eyes. And, you know, they also said they weren't surprised that, you know, justices had a lot of questions and concerns about this enforcement mechanism that Texas has in its law.

John Seago - he's the legislative director for Texas Right to Life, which is a very prominent and influential anti-abortion-rights group here in Texas that was, you know, integral to the drafting of this bill - said, you know, this was kind of designed to be a shock to the legal system. So it was supposed to kind of raise eyebrows in a setting like this. So that's not something they're worried about.

And they feel like one of the bigger things they wanted out of this, which is that the law would stay in effect throughout all the legal back-and-forth - and, you know, one of the things that has come out of this, or I guess hasn't come out of, you know, the hearings is whether or not we know whether the court is going to, you know, put - place a temporary ban. It doesn't seem like they will - like, a temporary block on the law, which is all that abortion rights - anti-abortion-rights groups really care about. They just want, you know, this law to be in place as long as possible.

TOTENBERG: If they know that, they know more than I do. I think it's really unclear what the court is going to do.

KHALID: Well, we'll talk more about that and the difficulty in trying to read the tea leaves and what people expect in just a second. But first, let's take a quick break.

And we're back. Ashley, this law has been in effect since September now, so how has it been playing out in Texas?

LOPEZ: Well, we now have some data, actually, on just the effect of the law. The Texas Policy Evaluation Project, which is at UT Austin, just released some data that in September 2021, which was the first month that this law was in effect, abortions fell by 50% compared to the September before. So in September 2020, there were about 4,000 abortions in the state. In 2021, you know, when this law was in effect, it's about 2,000. So it's a pretty big drop. I mean, compared to any other abortion law or restriction that has been in effect in Texas, this is, you know, the biggest drop from one month to the next.

So, you know - and that's - that ultimately is what, you know, abortion-rights groups say is their biggest concern here; is that the longer this law stays on the books, even as legal challenges continue, the more of an impact this will have on not just people seeking an abortion who are having to go to other states or wait it out, but also what this means for longer-term access. If abortion providers, if clinics, you know, are having to turn away the bulk of the people seeking abortions in the state, you know, what is that going to mean for staffing levels and just their sort of financial realities? And, you know, once abortion clinics close, it's really hard to reopen them.

TOTENBERG: We do know that last time when there was a law that made it much more difficult to have access to abortions, nearly half the abortion clinics in the state closed and didn't reopen.

LOPEZ: Right. And many still haven't. I mean, that's House Bill 2, I think, which the Supreme Court eventually blocked. But, you know - and when that law went into effect, you know, even when it was, like, half of the clinics closed, that was only a 13% decline in the number of abortions performed. So 50% is just, like, a pretty staggering number for people who are watching sort of access really quickly dwindle in the state.

KHALID: Nina, I know we don't know a lot at this point about how the court will decide on this case, but given what you saw yesterday, do you think that this novel model, where a private citizen can seek a fine from another private citizen, is something that we could potentially see more of in laws going forward?

TOTENBERG: Well, I'll tell you what we do know. We do know that in a month, the court will hear - and had long planned to hear - a direct challenge to Roe v. Wade and its framework, and that there is every possibility, one might even say likelihood, that the court will either in a one- or two- or three-step dance, begin the process of overruling Roe and also Planned Parenthood v. Casey. So this was the unexpected thing that happened.

Here's what we do know. Five members of the court have twice refused to block the law. Six members of the court yesterday, I would say, looked very askance at this law. So I think they're going to do something that indicates their displeasure with this law.

Whether they actually block it or not is not unclear to me. I'm sure there will be dissenters. And depending on how long the dissenters want to write their dissents and whether the majority thinks it has to correct what it thinks is wrong about the dissents when it sees those dissents, it could take one week, two weeks or many more weeks.

KHALID: OK. Well, let's leave it there. Though, to be candid, I am sure we're going to talk more about this decision in the coming months. Ashley Lopez of KUT in Austin, thanks, as always.

LOPEZ: Yeah. Thanks for having me.

KHALID: I'm Asma Khalid. I cover the White House.

TOTENBERG: I'm Nina Totenberg. I cover the Supreme Court.

KHALID: And thank you all for listening to the NPR POLITICS PODCAST.


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