Supreme Court Hints That It May Allow Challenge to Texas Abortion Law

The four justices who dissented in September — Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — did not seem to have changed their minds about the law. And Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch asked questions that suggested they thought the federal courts had no role to play.

Chief Justice Roberts asked a telling hypothetical question about the law, which allows plaintiffs who sue under it to win an award of at least $10,000 if they prevail.

“Assume that the bounty is not $10,000 but a million dollars,” Chief Justice Roberts said, adding, “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?”

Mr. Stone said no. That answer did not seem to satisfy the chief justice.

“Nobody is going to risk violating the statute,” he said, “because they’ll be subject to suit for a million dollars.”

Mr. Stone said the Texas law “is capped at much less than that.”

“Yeah,” Chief Justice Roberts said, a little irritated. “My question is what we call a hypothetical.”

Justice Breyer listed six ways in which suits brought under the Texas law differed from ordinary ones. “Anybody can sue,” he said. Second, they can sue anywhere in Texas, he added, noting that the state is bigger than Rhode Island.

Third, winning once is not a defense in a subsequent suits, he said. Fourth, prevailing plaintiffs are entitled to payment of their legal fees, he said, while defendants who win must pay their own lawyers. Fifth, he said, were the $10,000 bounties. Sixth, he said, were the law placed on defendants’ ability to defend themselves on constitutional grounds.

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