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SCOTUS Conservatives Seem Skeptical About Texas Abortion Law

SCOTUS Conservatives Seem Skeptical About Texas Abortion Law

SCOTUS

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 Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

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.

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

 

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.

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.

A state could provide that “everyone who sells an AR-15 is liable for a million dollars to any citizen,” said Justice Brett Kavanaugh.

 

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