The Supreme Court will hear arguments in two pivotal abortion cases regarding the landmark Texas law S.B. 8 on Monday. A lawyer and a former advisor to President Trump, working with America First Legal, argued that the cases center on the question of whether or not Texans have the democratic right to make their own laws and warned that the Department of Justice and abortion activists are aiming to bring about a monumental change in the law that would equate to Roe v. Wade "part 2."
"The Texas Heartbeat Bill was written to be fully congruent with federal law, state law, and Roe v. Wade," Stephen Miller, a former senior advisor to Trump and a member of the board of directors at America First Legal, told Fox News. AFL represents four private individuals who have intervened in the cases U.S. v. Texas and Whole Women's Health v. Jackson.
"Pro-abortion activists have had to invent one radical extra-legal pathway after another to go after it," Miller said.
The Texas law, signed by Republican Gov. Greg Abbott in May, effectively prohibits abortion at around six weeks and before many women know they’re pregnant. Rather than having the state enforce the ban, the law creates a private right of action against individuals who commit or aid and abet an abortion that violates the law – but not against the woman who undergoes the procedure.
The Supreme Court previously had rejected request for a stay when abortion providers sought to prevent the law from becoming operative until the resolution of a court dispute. The Department of Justice then filed a motion to block the law.
Acting Solicitor General Brian Fletcher argued that Texas had "successfully nullified [the Supreme] Court's decisions within its borders" by circumventing Roe v. Wade and making "abortion effectively unavailable in Texas after roughly six weeks of pregnancy."
Yet Miller argued that civil actions inhabit "a wholly separate legal sphere" from criminal actions, and that Roe v. Wade only prevented states from enforcing limits on abortion in the criminal sphere.
"The simple matter of fact is that the pro-abortion crowd has successfully, up until now, gotten the courts to wall off the criminal enforcement of abortion restrictions and that is preposterous for all the reasons that you can imagine," he told Fox News. Yet now abortion activists are asking courts to take "the equally breathtaking step of creating a separate, completely different Roe part 2 that speaks to third-party civil action that has nothing to do with the original ruling."
Miller framed the argument for S.B. 8 as a struggle to preserve democracy.
"In every other area of public life, people are able to, through the legislatures, pass laws against sex trafficking, sexual abuse, elder abuse, against every other social ill imaginable," he argued. "And yet for about half a century now, there’s been no ability by citizens in any state to work through legislatures to ensure some measure of protection for our youngest and most vulnerable citizens."
He argued that if H.B. 8 prevails, "the people of Texas will have reclaimed some measure of democracy."
AFL, Miller's organization, is representing three private individuals who intervened in the case U.S. v. Texas and one private individual targeted in Whole Woman's Health v. Jackson. Attorney Jonathan Mitchell will represent AFL's clients, along with Texas, in oral arguments before the Supreme Court on Monday.
Miller also addressed some other common arguments against S.B. 8.
Some conservatives have opposed the law, suggesting that liberals might use a similar strategy against free speech or gun rights.
"The progressive Left does not need permission from us or anybody else to use civil enforcement statutes that have been around for most of our country's history," Miller responded. "That’s like saying conservatives in Congress shouldn’t use the filibuster because liberals might." He also argued that abortion does not enjoy the same status under the Constitution as rights like free speech or gun ownership.
He said the rationale for combatting abortion through social action is "especially compelling" because abortion does "permanent irrecoverable irreversible damage."
Gene Hamilton, a lawyer who served at the DOJ from 2017 to 2021 and who currently serves as AFL's general counsel, told Fox News that these cases "do not involve the merits of Roe v. Wade or the Casey decision." The Supreme Court will later hear a case about a Mississippi abortion bill that does directly involve those precedents.
"Decades of precedent foreclose" the DOJ's arguments in U.S. v. Texas, he said. "What the advocates and the administration are seeking is to prevent state courts from even docketing cases or adjudicating cases and letting parties litigate the merits of their claims and their defenses under the guise of it all being contrary to a supposed concrete right to abortion."
"To say it out loud is to illustrate its preposterousness," Hamilton argued.
Whole Woman's Health did not respond to Fox News' request for comment. A spokesperson for the DOJ referred Fox News to the department's legal brief in lieu of comment. The brief argues that the DOJ can sue Texas over S.B. 8 because the Texas government passed the law in order to "circumvent" Roe, so even if the government does not enforce the law, the government is still responsible for it.