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Melissa Harris-Perry: On Monday, the Supreme Court heard three hours of arguments challenging the far-reaching abortion law that went into effect in Texas in September. The court fast-tracked their docket to hear two separate cases on the issue: one by abortion providers, and the other by the US Department of Justice. Here's part of what the Solicitor General told the court.

Solicitor General: If Texas can nullify Roe and Casey in this manner, then other states could do the same with other constitutional rights or other decisions of this court that they disfavor.

Melissa Harris-Perry: Now, the core point of contention is the unprecedented provision in Texas's law, making it enforceable through private party lawsuits. Several justices have expressed reservations about this aspect of the law, including conservative Justice Amy Coney Barrett.

Justice Amy Coney Barrett: "When it said that their rights, I took that to be, say, their First Amendment rights. If you had somebody who was counseling someone to get an abortion, say, and then was sued under this law, that they could say, 'I have a First Amendment right to free speech,' and so it would be unconstitutional. I didn't take that particular portion of the law to mean that they could assert third-party rights."

Melissa Harris-Perry: Conservative Justice Brett Kavanaugh's questions also seemed to express skepticism.

Justice Brett Kavanaugh: "Well, I think all these arguments were the same arguments that Minnesota raised and Ex Parte Young itself. Justice Kagan points out there's a loophole that's been exploited here, which is the private suits are enforced by state court clerks or judges. So the question becomes, should we extend the principle of Ex Parte Young to, in essence, close that loophole?"

Melissa Harris-Perry: It's a day of questioning that's raised more questions, especially for those anxious about the future of reproductive rights. Is it possible to predict the justices' likely positions from what they asked on Monday? If the court upholds the law, what will it mean for the future of abortion care across the country, and what does any of this suggest about another abortion case the court will consider very soon? I'm Melissa Harris-Perry, and we begin with those questions today on The Takeaway.

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Melissa Murray is a law professor at NYU, faculty director of the Birnbaum Women's Leadership Network, and co-host of the legal podcast called Strict Scrutiny. Welcome to The Takeaway, Professor Murray.

Professor Murray: Thank you. Thanks for having me.

Melissa Harris-Perry: Absolutely. Now, I want to say yesterday raised lots of questions for us, but we also reached out to our listeners for this story and asked what questions they had. Let's just take a call here from California.

Caller: Hi. I'm calling from California. How can a state make a law contradicting federal law, and under federal law women can have abortions?

Melissa Harris-Perry: Okay. It's a fair question, Professor Murray?

Professor Murray: Well, that seemed to be the million-dollar question yesterday. To be clear, the two arguments that were presented before the court did not go to the substantive merits of whether SB 8, that's the Texas law that prohibits abortion at just six weeks, is actually constitutional. That will come at a later time. The two questions that were presented yesterday in each of those cases was whether this case could even be brought in federal court in the first instance and whether the defendants here, the state court judges, the state court county clerks, or in the case of United States v. Texas, the state itself, were somehow immune from suit.

They were really narrow procedural issues, but they kind of went to this broader existential question of what is the point of having a Supreme Court whose job it is to say what the law is if, in fact, a rogue state can simply decide to create a clever procedural mechanism to avoid and indeed defy the tenets of federal law?

Melissa Harris-Perry: Precisely the way that you framed that there, when we heard a little bit from Justice Cavanaugh and from Justice Coney Barrett in the intro, there was something like skepticism. Did you take away from those line of questioning exactly the point you were just framing up for us?

Professor Murray: Definitely. I think these two justices and the fact that they were in the majority on September 1st to allow SB 8 to go into effect in Texas, they seemed to be singing a different tune yesterday. To be clear, they seemed to be skeptical that this was a situation where Texas could do what it had done. Basically done something quite clever to avoid having this law reviewed by federal courts, and ultimately enjoined and blocked from going into effect. They seem to be on the fence a little bit.

There were definitely three stalwart conservatives who seemed clear that they were happy to have the status quo, the law in effect in Texas curtailing the exercise of constitutional right in that state. There were three, or maybe even four if you include Chief Justice John Roberts on the other side, who believed that this was something that really went to the broader question of the court's legitimacy. Then you had these two justices who had previously been in the majority in the middle, and it looked very much like their votes were in play.

Melissa Harris-Perry: I want to also take a listen to another member of the court, Elena Kagan. Something she said.

Elena Kagan: "We would be inviting states, all 50 of them, with respect to their unpreferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights. That was something that until this law came along, no state dreamed of doing."

Melissa Harris-Perry: When we hear Kagan there say all 50 states and their unpreferred constitutional right, is that a veiled reference to the Second Amendment?

Professor Murray: I think it's surely a veiled reference to the Second Amendment, and indeed there were more explicit references to the Second Amendment yesterday in oral argument. Justice Sotomayor explicitly raised the prospect, at some stage, deciding to curtail Second Amendment rights using a similar kind of procedural mechanism. If you actually dig into Justice Kagan's comment, it's not just the prospect of a slippery slope of other states simply deciding what they like and what they don't like, and which rights they want to honor and which rights they'd like to curtail.

She goes back to this broader question of the court's legitimacy. We say what the law is. Who are these states to simply come along and decide what they will or will not comply with?

Melissa Harris-Perry: This very question about the standing to sue or to bring challenge was brought, in this case, both by the abortion providers and by the DOJ of the Biden administration. Just help our listeners to understand at the end of the day, what it looks like in terms of which one may be able to go forward here.

Professor Murray: The question of standing is a threshold question for any suit that is brought in federal court. In order to bring a suit in federal court, a plaintiff has to establish that he or she has an injury that is traceable to the defendant's conduct, and that federal court adjudication has some prospect of redressing that injury. In the case brought by the abortion providers against the state court judges and the state court county clerks, the argument is because these individuals have to process the lawsuits brought under SB 8, they are implicated and the state is implicated. For that reason, they can be sued and the law can be enjoined as a question of state action.

These judges and county clerks argue, and Texas argues, that they are immune from suit because they're simply doing their jobs. Justice Cavanaugh stepped in yesterday and asked, "Isn't processing these suits under a law that may or may not be unconstitutional basically giving that law the imprimatur of the state? Wouldn't that be a form of state action?" He referred to an earlier case, Shelly v. Kraemer from 1948, which said that restrictive racial covenants which prohibited homeowners from selling to African Americans, although those were private agreements between homeowners, they nonetheless had to be enforced by the courts, and that gave it the imprimatur of the state, and so he invoked that case.

On the case involving the Department of Justice, United States v. Texas, the question is whether the United States may abrogate a state sovereign immunity from suit and sue it. The broader question there, I think, for the justices was if they allow the Texas lawsuit to go forward, would this open the floodgates to the DOJ simply stepping in and suing states whenever states did something that the administration did not like? In both of these, I think we had two very particular kinds of procedural questions.

Based on what I saw yesterday, I could imagine the justices allowing the provider suit to go forward on the ground that there is some kind of state action because the state judiciary has to process these lawsuits and maybe consigning the DOJ case to the dustbin. Not allowing it to proceed, but allowing the provider suit to go forward.

Melissa Harris-Perry: If you're just joining us, we are in conversation about yesterday's hearing at the Supreme Court with Melissa Murray, law professor at NYU. All right. Professor Murray, let's take another listen to Justice Kagan here for a moment.

Elena Kagan: "The fact that after all these many years, some geniuses came up with a way to evade the commands of that decision, as well as the command that the even broader principle that states are not to nullify federal constitutional rights, and to say, 'Oh, we've never seen this before, so we can't do anything about it,' I guess I just don't understand the argument."

Melissa Harris-Perry: All right. Help us to understand the argument that Kagan is making there.

Professor Murray: Justice Kagan seemed to be incredibly frustrated with Texas yesterday. The snarky point on some geniuses came along to devise the clever way around a traditional understanding that comes from a 1905 case called Ex Parte Young. That in order to avoid the whole question of sovereign immunity, states generally cannot be sued by private citizens, but a state can be sued if you are suing the official actor who is charged with enforcing the state law.

Generally in most of these circumstances when abortion laws are challenged, the person in the state infrastructure who is supposed to enforce that law is the person who gets sued, and typically the law is enjoined until its constitutionality can be determined. What Texas did here because they wanted this law to go into effect, is that they basically cut the state out of the enforcement of this law entirely. They specifically prohibited state officials from enforcing this law, and instead delegated it to private citizens. That's the "some genius move" to which justice Kagan is referring.

She argues here, "It's a little too clever by half. We all see what you're doing here." Ex Parte Young, the case that I refer to, is the mechanism by which civil rights legislation and civil rights abuses can be prosecuted even in situations where the state will not do it themselves. It's important for the general progress of civil rights legislation and the administration of constitutional rights more generally to have an avenue to sue state officials, and Texas basically found this loophole. Justice Kagan seemed to be highlighting the loophole and urging her colleagues to close it.

Melissa Harris-Perry: All right. Another listener question.

Isaiah: Hi. This is Isaiah from Reno, Nevada. I had a question about the Texas law. When people go out of state to obtain an abortion, are the airlines, the car rental companies, or anything like that still subject to being sued, and if they were under the provision of anybody that aids in an abortion can still be sued?

Melissa Harris-Perry: All right. What do you say on that one?

Professor Murray: It's an excellent question, and it's one that we don't know the answer to because we actually haven't been able to litigate the various vagaries of this law. The law is written very broadly, and by its terms, as I read it, the whole prospect of aiding and abetting someone who provides an abortion or who is seeking an abortion could be expansive. This could be the Uber driver who takes you to the clinic. This could be the family member who gives you money to travel out of state to do so. We really have no idea what the limits are, and whether this law can be curtailed because it implicates other kinds of constitutional rights.

Like, for example, First Amendment rights in terms of free speech, in terms of counseling individuals. First Amendment rights might be implicated there. We really don't know. This law has many problems, and vagueness, I think, is one of them.

Melissa Harris-Perry: Has anyone actually brought suit under this law yet?

Professor Murray: Yes. There have been a couple of suits. Some of them seem to be quite strategic. There were a couple brought by two individuals who have felony convictions in their past. I think they were making the point that in suing the abortion providers they too came to the court without clean hands. There was very famously an abortion provider in Texas who wrote in The Washington Post that he was continuing to provide abortions because he wanted to be able to provide the basis for a lawsuit so that SB 8's constitutionality could be challenged.

But, again, the novel procedural mechanism of this particular law makes that difficult because you can certainly sue one provider, but that particular suit will not enjoin or deal with any further challenges that might be lodged against any other provider. You could simply have sort of a Star Trek tribble situation where you're just proliferating the kinds of lawsuits with no end in sight.

Melissa Harris-Perry: I so appreciate that you just used that particular reference. I have no idea how many of our listeners will get that, but I really feel like we'll go on social media and make sure that you see the tribbles replicating. I feel like in some ways you've addressed this question but I still want to hear. We have one more caller here who did have a question. Again, I think you've given us some of this, but let's get right to the nugget of it.

Doug: This is Doug from Portland Oregon. I would like to hear what experts say about the consequences that might emanate from a law encouraging citizens to turn in other citizens. Seems to me it might be ripe for abuse and unintended consequences.

Professor Murray: I think that's certainly apt. A law like this could surely be selectively enforced against individuals who take on difficult stances within their communities' controversial stances. I think more generally the fear here is that the whole idea of private enforcement leads to a kind of vigilantism that we have seen in other contexts with really, really deleterious consequences for communities and for marginalized groups within those communities. Again, I think the whole prospect of having a rule of law is basically to discharge some of the work of enforcing the law to the states, as opposed to having individuals decide that they need to prosecute the laws themselves.

Melissa Harris-Perry: There's another abortion case SCOTUS is set to hear. It's a challenge to the Mississippi law that before this Texas law was among the most restrictive, banning abortions after 15 weeks. That's been on the docket since last fall. I'm wondering, given that this is an older law that's been in place and it's been on the docket for quite some time, why have they not heard that one yet but they've at least heard the beginning part of this challenge in the Texas case?

Professor Murray: That's really a quirk of how this came up. SB 8 was initially heard on the court's shadow docket, which is its docket of emergency appeals that has to be dealt with expeditiously. The fact that the law went into effect in Texas and then prompted the subsequent lawsuits, prompted the court to move it from the shadow docket to its merits docket. HB 1510, which is the Mississippi law that's been challenged in the Dobbs case, was already pending on the merits docket.

The merits docket and the shadow docket are quite different because, because the shadow docket is expedited review, you normally don't have oral argument or even full briefing in those cases, and the decisions on those cases are usually quite spare. In fact, the court September 1st decision on SB 8 was just a paragraph. By contrast, the merits docket is the place where the court takes more fulsome consideration of various issues. As in this case yesterday, there was oral argument, there was full briefing, and there will be oral argument on December 1st and full briefing in the Dobbs case as well.

I should note that the Dobbs case did make an appearance yesterday in the oral arguments. Justice Alito mentioned it in a colloquy with Mark Herron who argued the case for the Center for Reproductive Rights. Justice Alito basically asked how do we know if it is SB 8 that is chilling access to abortion in Texas, or maybe it's simply that the providers fear a change in the law when something happens in a few weeks.

He seemed to be alluding to the fact that Dobbs was coming down the pike, and perhaps even tipped his hand that when Dobbs comes down the pike, he's very much in favor of altering the jurisprudential landscape in terms of what is or is not precedent. Watch the space. I think we are going to see the court perhaps in a very different posture when that case is argued in just a month.

Melissa Harris-Perry: If, in fact, they go with Mississippi law, that then becomes the precedent and it changes what constitutes precedent relative to this Texas law.

Professor Murray: Right. They are obviously interwoven, but the Mississippi case tees up the prospect of overruling Roe v. Wade, or even altering the standard for abortion restrictions. That will have implications for whether this six-week band is constitutional going forward.

Melissa Harris-Perry: I got it. Melissa Murray is a law professor at NYU, faculty director of the Birnbaum Women's Leadership Network, and one of the co-hosts of Strict Scrutiny, a legal podcast. Thanks so much for walking us through all of this today, Professor Murray.

Professor Murray: Thanks for having me.

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