Challenge of abortion law may proceed
Justices might allow case on Texas restrictions
A majority of Supreme Court justices Monday seemed willing to allow a challenge by abortion providers to a unique Texas law that bans most abortions after six weeks of pregnancy and allows enforcement by private citizens.
The court’s three liberal justices have already said they believe the law is unconstitutional and that it should be halted until federal courts can look at it more closely. The court in a 5-4 vote turned down that option before the law went into effect Sept. 1.
But at Monday’s threehour hearing, Justices Brett Kavanaugh and Amy Coney Barrett — part of that five-justice majority — repeatedly and pointedly questioned Texas’ arguments and seemed more swayed by challengers’ claims that the law improperly blocked the judicial review necessary when constitutional rights are at stake.
“There’s a loophole that’s been exploited here, or used here,” Kavanaugh said to Texas Solicitor General Judd Stone, and suggested it might be better to close it rather than allow Texas to employ it.
Barrett seemed concerned that the Texas law was written to avoid federal judicial review, but that it also would be hard for challengers to get relief in state court, where Texas said the constitutionality of the law should be challenged.
The court might rule more quickly than usual on what is in essence a procedural question.
The question before the Supreme Court does not require it to decide the constitutionality of the Texas law nor raise questions — for now — about whether the court should revisit its abortion jurisprudence.
The justices are considering two cases, one brought by abortion providers and the other by the Biden administration.
In their questioning, the justices seemed more interested in deciding the challenge brought by the clinics, rather than confronting the issues raised by the federal government suing one of the states.
The lack of judicial review was central to the arguments of both the abortion providers and Biden’s solicitor general, Elizabeth Prelogar.
“In enacting Senate Bill 8, the Texas legislature not only deliberately prohibited the exercise of a constitutional right recognized by this court, it did everything it could to evade effective judicial protection of that right in federal or state court,” said Marc Hearron, the lawyer from the Center for Reproductive Rights representing Whole Woman’s Health.
Prelogar, who was confirmed Friday by the Senate, said no constitutional right or Supreme Court precedent is safe should the court side with Texas.
“S.B. 8 is a brazen attack on the coordinate branches of the federal government,” she told the court.
“It’s an attack on the authority of this Court to say what the law is and to have that judgment respected across the 50 states . ... The United States may sue to protect the supremacy of federal law against this attack.”
The law is “not a novel problem for which this Court must concoct a novel solution,” he said.