Supreme Court Justices Appear Open To Allowing Challenges To Texas Abortion Law

Justices Brett Kavanaugh and Amy Coney Barrett asked some telling questions about the law's unusual structure.

The U.S. Supreme Court heard arguments Monday over Texas’ hotly debated abortion ban, and although it could be days or weeks before the court issues a ruling, justices who will cast key votes on the issue signaled apprehension over the law’s wider implications.

Conservative justices Brett Kavanaugh and Amy Coney Barrett, who both tend to favor abortion restrictions, hinted at some skepticism over the Texas law while hearing from abortion providers and the U.S. Justice Department. The arguments did not concern the legality of a six-week abortion ban but rather the unique structure of the law and whether its opponents can mount federal court challenges against it.

The legislation deputizes citizens, not the state, to enforce the ban and offers a $10,000 bounty to anyone who successfully sues someone for “aiding or abetting” patients seeking abortions in Texas. It’s that unusual design, one that has little historical precedent, that has made it so difficult to wage legal battles in federal court.

During his questioning Monday, Kavanaugh referred to that element of the Texas law as a “loophole that’s been exploited” and pointed to concerns gun lobbyists have raised about states using this tactic to safeguard stricter gun legislation from lawsuits. He quoted an amicus brief filed by the Firearms Policy Coalition in the case, which argued that if the Texas law stands as is, “it will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets of such suppression.”

The precedent could go beyond firearms, Kavanaugh added. “It could be free speech rights,” he said. “It could be free exercise of religion rights.”

Barrett, the most recent addition to the court, repeatedly raised the question of whether the law prevents people from asserting their constitutional rights. She also signaled concern over hundreds of people being able to sue over a single abortion, while judges could only rule one case at a time.

“You can’t get a global relief,” she said. “The statute can still be enforced against you.”

Pro-choice activists demonstrate outside the Supreme Court in early October.
Pro-choice activists demonstrate outside the Supreme Court in early October.
Kevin Dietsch via Getty Images

Kavanaugh and Barrett both previously voted against blocking the Texas abortion ban before it could take effect. The two of them breaking ranks with the court’s staunchly conservative faction this time would secure the liberal justices a majority on this matter.

That would be a big win for abortion providers, who argued before the court on Monday that the state cannot be protected from lawsuits in this instance, both because a constitutional right is at stake and because private citizens enforcing the ban are acting as agents of the state. Similarly, the Justice Department argued that the U.S. government should be able to sue Texas over the law, which Attorney General Merrick Garland has called “clearly unconstitutional.”

Until recently, it wasn’t clear whether the conservative-leaning Supreme Court would get involved. The court announced on Oct. 22 that it would fast-track an appeal on the Texas abortion ban, but it declined to block the law while the legal proceedings play out ― a decision Justice Sonia Sotomayor criticized, saying countless patients across Texas will suffer the consequences.

“As I write these words, some of those women do not know they are pregnant,” she wrote. “When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State.”

The court’s decision to hear arguments marked a somewhat surprising turn of events. Nearly two months earlier, the court had declined to intervene on the eve of the law going into effect despite several groups pleading with the high court to act.

The court didn’t speak up on the ban until the day after it went into effect, saying in a 5-4 decision that opponents of the ban failed to “carry the burden” necessary for an injunction. But the court also noted that its decision was “not based on any conclusion about the constitutionality of Texas’ law.”

Shortly after that decision, public opinion polling found that Americans’ approval rating of the court had fallen to a new low of 40%.

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