In the CNN video Toobin: This is the most important question a justice asked

CNN Chief Legal Analyst Jeffrey Toobin shares his thoughts on the Supreme Court justices' questions as they hear oral arguments on a Texas law that bars most abortions after six weeks.

a sound bite from US Supreme Court justice Amy Coney Barrett is presented and then explained. Justice Barrett says:

I'm wondering if, in a defensive posture in state court, the constitutional defense can be fully aired?

CNN Reporter Jessica Snyder explains:

Amy Coney Barrett effectively asking here about the structure of this law, and in particular the fact that this law says even if an abortion provider is sued, which at least two doctors have been so far, when they go into court, they can not use as a defense the constitutionality of abortion. They can not go forward and say to the judge "Well, the supreme court has held that abortions are legal; it is constitutional for a woman to get an abortion prior to viability (22 to 24 weeks)."

That's part of the law here that's being questioned.

Answer(s) to Are there constitutional arguments for preventing/avoiding judicial review of state law in some scenarios? Are there any historical examples of this? are essentially No.

But here I'm asking something substantially different.

Question: How close does the Texas law that bars most abortions after six weeks come to saying "Defendants can't assert constitutionally protected rights?"

Clarification: Is there actually anything in the law that literally says that or comes close, or is it more that that would be the result of the law, even though there's nothing explicit in its writing that says a defendant couldn't?

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    Some parts of the law explicitly say that, but those are probably not the more egregious ones. The most obvious point is ... politics.stackexchange.com/questions/68572/… Nov 2, 2021 at 1:13
  • I voted to close this as needs more focus, because it appears to be asking multiple (albeit related) questions. To the people voting to close this as not politics related, why? This is highly related to politics. Nov 2, 2021 at 14:07
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    @EkadhSingh-ReinstateMonica it appears to asking exactly one question, seen both in the title and repeated again at the end, labeled in bold font "Question: How close does the Texas law that bars most abortions after six weeks come to saying 'Defendants can't assert constitutionally protected rights?'" the following two sentences merely elaborate/clarify, to avoid the "Are you asking...?" comments. Nov 2, 2021 at 14:23
  • @uhoh I’ve edited your question to reflect what you said in the comments. Also, wouldn’t this be a binary situation, instead of a “how close is” situation, or am I misunderstanding? Nov 2, 2021 at 14:48
  • 1
    Potentially novel interpretation: Texas means to assert its pre-existing right to have any case to which it is a party be heard before the Supreme Court.
    – Joshua
    Jan 29, 2022 at 1:51

1 Answer 1


I'm not entirely certain this is the part of the law that's being discussed in those snippets from the question, but there is one provision in SB.8 that (apparently unconstitutionally) explicitly attempted to limit the level of review in federal courts below the Supreme Court:

Sec. 171.209. CIVIL LIABILITY: UNDUE BURDEN DEFENSE LIMITATIONS. (a) A defendant against whom an action is brought under Section 171.208 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless: (1) the United States Supreme Court holds that the courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion in state court as a matter of federal constitutional law; or (2) the defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court.

While the highlighted part (alternative 1) seem to violate the Supremacy Clause, it might be non-operational if alternative 2 always applies, but I honestly don't even understand what that 2nd part means/implies in practical terms. Hopefully the Supreme Justices are not going to be as confused as I am.

For anyone more inclined than me to dive into that, 3rd party standing looks pretty complicated.

Third-party standing is relevant to a wide range of constitutional and statutory cases. The Supreme Court has said that, to assert such standing, a litigant must ordinarily have a close relationship with the right holder and the right holder must face obstacles to suing on their own behalf. Yet the Court does not seem to apply that test consistently, and commentators have long critiqued the third-party standing doctrine as incoherent. [...]

Controversy over third-party standing doctrine intensified in 2020 in connection with the June Medical Services case before the Supreme Court. In that case, abortion doctors in Louisiana challenged a state law requiring them to have admitting privileges at a nearby hospital. Louisiana argued that the doctors lacked third-party standing to raise the abortion rights of their clients. A majority of the Court upheld the doctors’ third-party standing, but its decision did nothing to clarify the doctrine. There was no majority opinion on the issue. A plurality relied, in part, on Louisiana’s failure to raise the standing argument until it reached the Supreme Court, and did not explain how the traditional relationship-plus-obstacle test was satisfied. Several Justices dissented on the standing issue.

  • 1
    Perhaps that mention of the supreme court stems from the common misconception (seen frequently over at Law) that only the supreme court has the power to find laws unconstitutional. In fact, the appeals courts can do so, as can any federal or state court.
    – phoog
    Nov 2, 2021 at 11:06
  • Without 3rd party standing won't challenging the law only be open to pregnant people between 6 and 24 weeks into gestation?
    – Jontia
    Dec 14, 2021 at 14:18
  • @Jontia Existing court precedents on standing for abortion means the woman in question would retain standing even if the baby has already been born, miscarried, etc. As a practical matter, the court system, especially the entire appeals process, rarely gets anything done in under 9 months if it can at all manage to do so. This prevents the issue from escaping judicial review; similar rules exist for other transient events that begin and elapse before courts can readily handle them. Jan 28, 2022 at 12:12

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