Kavanaugh, Barrett Signal Skepticism in Texas Abortion-Law Case
(Bloomberg) -- Key U.S. Supreme Court justices raised the prospect they might act to halt Texas’ far-reaching abortion ban, questioning the state’s contention that federal courts can’t block the law.
Hearing arguments two months after letting the measure take effect, justices including Brett Kavanaugh and Amy Coney Barrett voiced skepticism about various parts of Texas’ defense of the law. The court is considering separate bids by abortion providers and the Justice Department to block application of the law, which bans abortion after about six weeks of pregnancy.
The argument centered on an unusual provision Texas included to try to keep federal courts from getting involved and stopping the law. Texas made the law enforceable only through private parties so that courts wouldn’t have a clear-cut way to block it. Courts typically block unconstitutional laws by ordering government officials not to enforce them.
Kavanaugh characterized that provision as “a loophole that’s been exploited here, or used here” and expressed concern it could be used as a model to restrict other freedoms, including gun rights.
Barrett questioned Texas’ assertion that clinics and others sued under the law in state court could raise constitutional arguments at that stage. “I’m wondering if in a defensive posture in state court, the constitutional defense can be fully aired,” she said.
Kavanaugh and Barrett were in the majority when the Supreme Court let the law take effect Sept. 1 on a 5-4 vote. The court said the providers failed to overcome “complex and novel antecedent procedural questions” even while acknowledging “serious questions” about the law’s constitutionality.
The Supreme Court could act within a matter of weeks or even days. The court could block the Texas law itself or kick the provider case back to a federal trial judge to let him do so.
Strictest Ban
The Texas law is by far the strictest abortion ban in effect in the country, outlawing the procedure far earlier in pregnancy than the Supreme Court has ever allowed. Under a 1992 Supreme Court precedent, states can’t impose significant restrictions on abortion until the fetus becomes viable, or capable of living outside the womb, a point sometime after the 20th week of pregnancy.
The statute bars abortion after fetal cardiac activity can be detected and puts infringing clinics at risk of being shut down. The law lets private parties sue a clinic or anyone who helps a woman get an abortion -- and collect a minimum of $10,000 in damages per procedure -- but doesn’t authorize government officials to sue alleged violators.
Kavanaugh pressed Texas Solicitor General Judd Stone on the prospect that the legal machinery of the new abortion law could be used against other freedoms, referring to a brief filed by a gun rights group.
“We can assume that this will be across the board, equally applicable as the Firearms Policy Coalition says, to all constitutional rights?” Kavanaugh said, later asking Texas’ lawyer to imagine a law that let anyone sue a person for using an AR-15 rifle and hold them liable for $1 million.
The providers’ lawsuit names various Texas officials as defendants, including a state judge and court clerk who would be responsible for handling cases in their jurisdictions, along with an anti-abortion pastor who the clinics say has threatened to sue those who violate the act. The Justice Department is suing the state as a whole but seeking an order that would bind individuals.
Texas says the Constitution doesn’t guarantee pre-enforcement review of laws in federal court. The Justice Department and abortion providers say the state is using an unprecedented ploy to nullify the court’s abortion-rights precedents.
The court will hear arguments next month on a Mississippi appeal that seeks to overturn Roe v. Wade, the 1973 ruling that said for the first time that abortion is a constitutional right. Mississippi is defending its ban on abortion after 15 weeks of pregnancy.
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