U.S. Supreme Court Justices Hear Arguments Over New Texas Abortion Law

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The U.S. Supreme Court on Monday questioned lawyers for abortion providers, the federal government and Texas about the state’s near-total abortion ban – and may have alluded to support to authorize at least one legal challenge to the law.

The majority of judges rejected the enforcement mechanism that has allowed the law to bypass judicial review so far, but seemed skeptical of the federal government’s claims that it had the right to sue the state over the law.

The Supreme Court has heard hearings on the Texas Abortion Act, also known as Senate Bill 8, in two lawsuits – one filed by abortion providers and the another by the US Department of Justice. Both focused on the details of the process surrounding the law and the lawsuits challenging it, not abortion rights or the constitutionality of the law itself.

These questions revolved around whether Texas’ law enforcement strategy is permitted – which allows private citizens to prosecute those who practice or assist someone with an abortion by law – and whether the States – United have the right to sue Texas under the law.

Notably, Conservative Justices Amy Coney Barrett and Brett Kavanaugh appeared to push back on Texas’ single enforcement mechanism. Their series of questions and comments suggested they could side with abortion providers in condemning the “loophole” the law exploits to thwart judicial review. Kavanaugh and Barrett, along with three other Conservative justices, voted against temporarily blocking the law on September 1, when the law came into effect.

Texas law, which blocks abortions at around six weeks pregnant, circumvents constitutional precedent by prohibiting state officials from enforcing it and instead relying on private citizens to prosecute violators. Typically, in prosecutions to overturn laws deemed unconstitutional, courts do not block the laws themselves – they block their application. This is the reason why opponents have struggled to name the right defendants to block the law.

Much of Monday’s discussion centered on how this enforcement mechanism could be replicated to have a chilling effect on other constitutionally protected rights: not just abortion rights, but possession as well. guns, press freedom and same-sex marriage.

It remains to be seen how the judges vote. A decision is unlikely to come on the same day as the hearing, but could be made soon.

The three Liberal Supreme Court justices and Tory Chief Justice John Roberts voted to temporarily block the law in September. If Barrett and Kavanaugh sided with them now, it would likely put enough votes in place to temporarily block law enforcement.

However, even if the law is ultimately overturned, abortion advocates fear that the right to abortion remains in serious jeopardy. On December 1, the Supreme Court is expected to hear another high-profile abortion case: Dobbs v. Jackson Women’s Health Organization. Many expect abortion rights to be invoked in this case and fear that Roe v. Wade – who, with subsequent rulings, asserts a person’s right to an abortion before fetal viability – be overturned.

Under SB 8, individuals or groups successfully prosecuted can face penalties of at least $ 10,000. It is a restrictive law that, if upheld, ends access to abortion for millions of people across the state.

The law has effectively ended most abortions in the state. All Texas abortion providers have had to shut down most of the procedures they previously offered, with some ceasing to offer abortions, even those permitted under SB 8.

Since then, people seeking abortions have sought services in other states, forming backlogs of Texan patients desperate for the procedure.

This article originally appeared in The Texas Tribune, a non-partisan, nonprofit media organization that educates – and engages with – Texans about public policy, politics, government, and statewide issues.

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