WASHINGTON — Two major points of contention came into focus Wednesday as the U.S. Supreme Court collected briefs ahead of its snap hearing next week on Texas’ six-week abortion ban.

First, did Texas manage to make its ban legally impervious by outsourcing enforcement to bounty hunters – even though it clearly violates a half-century of protections for abortion rights until a fetus can survive outside the womb.

The other is whether the federal government can invoke the public interest to insert itself in lawsuits between private parties – in this case, Texas abortion providers and the limitless supply of people anywhere who might want to sue them under Senate Bill 8.

Texas insists that its law is crafted so well, no one has jurisdiction to challenge.

In its 93-page brief, the state maintains that since no state official enforces the ban, the Justice Department lacks standing. Abortion clinics also can’t challenge the law because – as the Legislature intended – they can’t “identify an appropriate defendant.”

Since 1973 and the Roe vs. Wade ruling, the court has allowed abortion through viability – roughly four months after a fetal heartbeat can be detected, the cutoff under SB 8.

Despite the overt violation of Roe, Texas insists its law is fine, because doctors can cite Roe as a defense when they’re sued, just as a person arrested for a gun infraction can cite Second Amendment rights to escape punishment.

“SB 8 creates liability for only those post-heartbeat abortions that are not protected under this Court’s current precedent. SB 8 therefore does not unconstitutionally `ban’ previability abortions,” Texas argued.

For the Biden administration and abortion providers, it’s too clever by half.

“Texas’ effort to nullify this Court’s precedents by thwarting judicial review threatens the United States’ sovereign interest in ensuring the supremacy of the Constitution,” the Justice Department argued in its 78-page brief.

The $10,000 awards offered to successful plaintiffs under SB 8 are only a minimum, and there’s no cap, the government noted. There’s no limit on how many lawsuits can be filed against a doctor, clinic worker, driver or anyone else who “aids or abets” a post-heartbeat abortion.

And the lawsuits can be filed anywhere in Texas, including hundreds of miles from the clinic.

“By exposing abortion providers to crippling liability, thwarting pre-enforcement review, and creating an incentive for countless private parties to sue providers repeatedly under skewed procedures favoring plaintiffs, the law aims to chill the provision of constitutionally protected abortion care,” the Justice Department asserts.

Roe and the string of rulings that stem from it since 1973 all involved constraints against officials who might impede access to a legal abortion.

To evade judicial review under those precedents, SB 8 takes enforcement out of the hands of any official.

The American Bar Association, in its friend of the court brief, called it intolerable to allow such “weaponization of its courts” while “no federal court, including this one, could do anything about it.”

“This court has never countenanced such lawlessness,” the ABA argued.

Two cases are on the table.

One pits the state against the Justice Department, which first must convince the Supreme Court that it has a stake in SB 8.

The other pits the state against Whole Woman’s Health and other clinics that have halted nearly all abortions since the law took effect Sept. 1, deterred by the threat of ruinously costly lawsuits.

“Some Texans are traveling nearly a thousand miles or more to distant states. ... Many pregnant Texans are unable to travel out of state for care and are forced to carry those pregnancies to term against their will,” the clinics argue in their 67-page brief. “S.B. 8 is achieving its purpose.”

And “copycat bills” are on the way in other states, they warned, arguing that “if this is permissible, nothing would stop legislatures unhappy with this Court’s rulings on free speech, religious freedom, the right to bear arms, or property rights from following suit. ... If ever there were a need for the federal courts to step in, this is it.”

Railroad strike

The argument over the federal government’s role may hinge on an 1895 case involving a railroad strike.

Workers at the Pullman Co., which made first-class sleeping cars, went on strike over low wages. Railroad workers in Chicago joined the fight, bringing major disruptions to travel and mail delivery.

The strike ended with intervention by the U.S. Army, and union leader Eugene Debs in jail.

In re Debs became a notorious example of the courts siding with industry over labor.

In terms of the Texas abortion fight, it offers a key precedent because under Debs, the U.S. government can intercede in legal fights between private parties to protect “the public interest and general welfare.” U.S. District Judge Robert Pitman in Austin cited that standard when he froze enforcement of SB 8, a ruling the 5th Circuit appellate court quickly overturned.

A group of 20 Republican attorneys general led by Indiana argue that Debs did not give Washington carte blanche to meddle in lawsuits to which it’s not a party.

“This one-and-a-quarter century-old decision, which permitted the federal government to enforce an anti-strike injunction quelling violent railroad labor unrest, vindicated no private rights and invalidated no state laws,” Indiana and its allies argue. “Rather, the suit was premised on the federal government’s property interests in the mail, its constitutional authority over interstate commerce, and the `public right’ in unobstructed interstate rights of way.”

A ruling that allows the U.S. government to challenge SB 8 “threatens to expose every State in the Union to suit by the federal Executive Branch whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere,” read a brief submitted by Indiana, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.

Texas also got reinforcements from the American Center for Law and Justice, a conservative legal group, which argued that “it is indefensible to bring a federal case to stop private citizens from suing each other in state court.”

A group of Texans who intervened in the case to protect their right to file lawsuits under SB 8 echoed the state’s argument about lack of federal standing: “The State of Texas does not `enforce’ SB 8; it merely allows its judiciary to adjudicate private civil lawsuits brought under the statute.”

Slippery slope?

Much of the argument on Monday will focus on the unique enforcement mechanism Texas devised.

A group of 128 current and former prosecutors and judges characterized it as a “deeply troubling vigilante system” that shows “dangerous and brazen disrespect” for constitutional rights and Supreme Court precedent.

Democratic attorneys general from 23 states and the District of Columbia echoed the Justice Department’s pleas.

In the past, they argued, “this Court has not hesitated to recognize state action for Fourteenth Amendment purposes when faced with similar `evasive schemes’ for trampling constitutional rights under color of state law, including where — as here — a State enlists its courts to deprive people of their constitutional rights.”

Massachusetts led the push, joined by California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin.

A group of prominent constitutional law scholars characterized as a transparent dodge Texas’ claim that reliance on “private bounty hunters” shields SB 8, calling it a “challenge to the rule of law [and] our system of constitutional government.”

Texas takes issue with such reasoning, arguing that its “sovereign immunity” would be violated if the Supreme Court enjoins individuals who haven’t filed a lawsuit from ever doing so, or state court judges who might preside over such lawsuits.

Doctors side with feds

The Biden administration’s allies include the Texas Medical Association, which argued in its brief that SB 8 will lead to clogged courts, and it will worsen Texas’ doctor shortage as medical school residents head to states that offer more complete training.

The law also creates “unreasonable interference in the physician-patient relationship,” the TMA complained. Obstetricians are afraid to offer genetic testing and counseling for fear that the “aids or abets” language is so vague they might end up as defendants if a patient later terminates her pregnancy.

That adds up to harm to the general welfare, TMA said – the Debs standard for federal intervention.

The Justice Department “undoubtedly” has the right to challenge the law, the Constitutional Accountability Center, a progressive public interest law firm, argued in its amicus brief.

The group describes SB 8 as a “brazen and unprecedented attack on the supremacy of federal law and the constitutional rights” of Texans, and “a substantial burden on interstate commerce.”

Debs did hinge in part on federal control over interstate commerce.

Texas women have flooded clinics in other states, and the high court could end up taking that into account as it weighs the question of federal jurisdiction.

A group of Planned Parenthood organizations with health centers in Texas, Arkansas, Colorado, Kansas, New Mexico, Oklahoma and Nevada submitted an amicus brief that offers dozens of anecdotes about Texas women who have already been denied abortions under SB 8.

On the other side, a coalition of “abortion survivors” and Texas women who now regret terminating pregnancies urged the court to allow SB 8 to remain in force to protect the lives of unborn babies and to protect “thousands of women from the irreparable injury of abortion trauma.”