Key U.S. Supreme Court justices raised the prospect they might act to halt Texas’ far-reaching abortion ban, questioning the state’s contention that federal courts can’t block the law.
Hearing arguments two months after letting the measure take effect, justices including
The argument centered on an unusual provision Texas included -- making the law enforceable only through lawsuits by private parties -- to try to keep federal courts from getting involved and stopping the law. Courts typically block unconstitutional laws by ordering government officials not to enforce them.
Kavanaugh characterized that provision as “a loophole that’s been exploited here, or used here” and expressed concern it could be used as a model to restrict other freedoms, including gun rights.
Barrett questioned Texas’ assertion that clinics and others sued under the law in state court could raise constitutional arguments at that stage. “I’m wondering if in a defensive posture in state court the constitutional defense can be fully aired,” she said.
Kavanaugh and Barrett were in the majority when the Supreme Court
The Supreme Court could act within a matter of weeks or even days. The court could block the Texas law itself or kick the provider case back to a federal trial judge to let him do so.
The Texas law is by far the strictest abortion ban in effect in the country, outlawing the procedure far earlier in pregnancy than the Supreme Court has ever allowed. Under a 1992 Supreme Court precedent, states can’t impose significant restrictions on abortion until the fetus becomes viable, or capable of living outside the womb, a point sometime after the 20th week of pregnancy.
The court will hear
The Texas statute bars abortion after fetal cardiac activity can be detected and puts infringing clinics at risk of being shut down. The law lets private parties sue a clinic or anyone who helps a woman get an abortion -- and collect a minimum of $10,000 in damages per procedure -- but doesn’t authorize government officials to sue alleged violators.
The lawyer representing the clinic and doctors,
“Nobody is going to risk violating the statute, because they’ll be subject to suit for a million dollars,” Roberts said. “That takes a lot of fortitude to undertake the prohibited conduct in that case. And under the system, it is only by undertaking the prohibited conduct that you can get into federal court.”
Stone said abortion providers’ situation was no different than those of people who might have a Second Amendment defense to charges of illegal firearm possession.
“An individual facing extreme sanctions still nonetheless often has to go through state court systems to vindicate their federal rights,” Stone argued.
Kavanaugh pressed Stone on the prospect that the legal machinery of the new abortion law could be used against other freedoms, including gun and religious rights. He asked Texas’ lawyer to imagine a law that let anyone sue a person for using an AR-15 rifle and hold them liable for $1 million.
“A state passes a law: Anyone who declines to provide a good or service for use in a same-sex marriage, a million dollars, a suit by anyone in the state, that’s exempt from pre-enforcement review?” Kavanaugh asked.
She qualified that statement seconds later, saying, “I should have said every woman in Texas who has not learned and has not made a decision before six weeks.”
The providers’ lawsuit names various Texas officials as defendants, including a state judge and court clerk who would be responsible for handling cases in their jurisdictions, along with an anti-abortion pastor who the clinics say has threatened to sue those who violate the act. The Justice Department is suing the state as a whole but seeking an order that would bind individuals.
Prelogar and Gorsuch
Texas says the Constitution doesn’t guarantee pre-enforcement review of laws in federal court. The Justice Department and abortion providers say the state is using an unprecedented ploy to nullify the court’s abortion-rights precedents.
U.S. Solicitor General
She tangled with Justice
Prelogar, the Biden administration’s top Supreme Court lawyer, quickly countered: “In the history of the United States, no state has done what Texas has done here.”
Barrett questioned whether the court would need to grant the Justice Department request if the justices backed the providers, saying the former would be a “pile-on injunction.”
The Justice Department case is U.S. v. Texas, 21-588. The provider case is Whole Woman’s Health v. Jackson, 21-463.
(Updates with excerpts from arguments starting in 10th paragraph.)
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