A majority of justices on the Supreme Court appeared willing Monday to let abortion providers in Texas continue their challenge against the state’s strict abortion law, which has all but stopped abortions in the state.
The State of Texas had asked the court to block a lawsuit brought in federal court by abortion clinics in Texas against S.B. 8, the nation’s most restrictive abortion law, which bans abortion after doctors can detect a fetal heartbeat, about six weeks into a pregnancy. But a majority of the justices suggested they would let that challenge by abortion clinics go forward. However, they may be less willing to let a separate lawsuit proceed that was filed by the Justice Department.
The justices must decide whether abortion providers in Texas and the Justice Department have the legal right to challenge the law in court and to seek orders banning state court clerks and judges from doing anything in response to the lawsuits. Because the Supreme Court has ruled that states cannot ban abortion before the age of fetal viability, around 24 weeks, Texas officials could not enforce the ban themselves.
Texas is telling SCOTUS that those who are suing an abortion provider are suing because they have been “injured” by their own moral outrage to abortion.
Get your cult out of our uteruses.
— 𝐁𝐞𝐤𝐬 (@antifaoperative) November 1, 2021
The Supreme Court has twice refused to block enforcement of the law while the two challenges worked their way through the courts. But it did agree to take up the appeals on a fast track. The court isn’t likely to issue its decision until the spring in such a complicated case involving novel state law. The Texas law will remain in effect in the meantime. And on December 1st, the court will take up an even bigger challenge to abortion rights. Mississippi will urge the court to overrule Roe v. Wade and declare that there is no constitutional right to abortion
SCOTUS Justice Brett Kavanaugh asks TX abortion law defense about the “implications for other constitutional rights,” including the 2nd Amendment:
“If this position is accepted here … it can be easily replicated in other states that disfavor other constitutional rights.” pic.twitter.com/Aq6HDZ3sOq
— The Recount (@therecount) November 1, 2021
Several justices suggested that the federal courts have no authority to block a lawsuit against state court judges. But some suggested they may be open to barring state court clerks from docketing any lawsuits filed under S.B. 8. The court’s more liberal members were clearly hostile to the structure of S.B. 8. “The entire point of the law is to find the chink in the armor” of the court’s rulings that block injunctions against state court judges but allow the federal courts to block state officials from carrying out unconstitutional laws, said Justice Elena Kagan.
I know one shouldn’t read too much into the questions and hypotheticals justices pose during #SCOTUS arguments, but Justice Gorsuch comparing the chilling effect on constitutional rights of the Texas abortion ban to that of COVID public health restrictions is, like, whew…
— Kimberly Atkins Stohr (@KimberlyEAtkins) November 1, 2021
Kagan said that “we would live in a very different world from the world we live in today” if the court blocked the administration from challenging laws that violate constitutional rights. And even some of the court’s conservatives seemed concerned about the attempt by Texas to structure a law that deprives residents of a constitutional right but is intended to make it impossible to challenge the law in federal court. Justice Amy Coney Barrett — who expressed her opposition to abortion before joining the Supreme Court — questioned the aspect of the Texas law where those suing can collect at least $10,000, which could allow continued lawsuits despite an abortion provider getting a court order to block a specific suit.
#RoeVWade is the law of the land and the majority of Americans want it to stay that way. Today, with access to abortion on the line at SCOTUS, we’ve got to stand up and speak out to protect the right to abortion. RT if you’re with me in this fight.
— Senator Patty Murray (@PattyMurray) November 1, 2021
A state could provide that “everyone who sells an AR-15 is liable for a million dollars to any citizen,” said Justice Brett Kavanaugh.