Justices question Texas abortion law
Newest conservative judges look at measure’s structure
WASHINGTON – A majority of the Supreme Court signaled Monday they would allow abortion providers to pursue a court challenge to a Texas law that has virtually ended abortion in the nation’s second-largest state after six weeks of pregnancy.
But it was unclear how quickly the court would rule and whether it would issue an order blocking the law that has been in effect for two months, or require providers to ask a lower court to put the law on hold.
Two conservative justices, Brett Kavanaugh and Amy Coney Barrett, voted in September to allow the law to take effect, but they raised questions Monday about its novel structure. The law was written to make it difficult to mount legal challenges, and it subjects clinics, doctors and others who facilitate an abortion to large financial penalties.
“There’s a loophole that’s been exploited here, or used here,” Kavanaugh said, explaining that the question for the court is whether to “close that loophole.” Kavanaugh suggested that the “principle” and “whole sweep” of a 1908 Supreme Court case would “suggest extending the principle here, arguably” and closing the loophole.
The justices heard three hours of arguments Monday in two cases over whether abortion providers or the Justice Department can mount federal court challenges to the law, which has an unusual enforcement scheme its defenders argue shields it from federal court review.
The Biden administration filed its lawsuit after the justices voted 5-4 to refuse a request by providers to keep the law on hold. Three other conservative justices joined Barrett and Kavanaugh in the majority to let the law take effect. Chief Justice John Roberts joined the court’s three liberal justices in dissent.
The justices sounded less convinced that the Justice Department lawsuit should go forward, and Justice Elena Kagan suggested that a ruling instead in favor of the providers would allow the court to avoid difficult issues of federal power.