Supreme Court justices seem inclined to side with abortion providers in Texas

Updated November 1, 2021 at 2:41 PM ET

The Supreme Court appeared inclined Monday to allow abortion providers to challenge a controversial Texas law that in effect bans all abortions after six weeks of pregnancy, which is before most women know they are pregnant.

In more than three hours of oral arguments, the court heard two separate challenges from the U.S. Justice Department and abortion providers over the law. The court's conservative majority appeared skeptical of the Biden administration's challenge to the law.

The court was considering the following two questions:

• whether "the state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil action";
• and can "the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced."

The justices appeared more open to the first question. Justice Brett Kavanaugh, a conservative, said the Texas law "exploited" a loophole in court precedent and asked if the court should "close that loophole."

But on the second, the court's conservative majority appeared skeptical. Kavanaugh called the Justice Department's lawsuit "irregular and unusual."

This is the second time that the novel Texas law has come before the court. In a midnight ruling two months ago, the court, by a 5-4 vote, allowed the law to go into effect over the protests of the court's three liberals and its conservative chief justice, John Roberts.

Indeed, those who wrote the law have boasted about how it is designed to avoid review in the federal courts.

Specifically, the Texas law, known as S.B. 8, bans abortions after about six weeks, when many women don't yet know they are pregnant. It contains no exceptions for rape or incest, and it has only a limited and ill-defined exception for a "medical emergency." But most importantly, the law's enforcement mechanism is to allow anyone who aids and abets an abortion to be sued by any private citizen for a minimum of $10,000. As a result, abortions in Texas have come to a virtual halt.

On Monday, the case was back before the Supreme Court, which has expedited briefing and arguments even more quickly than it expedited the case against then-President Richard Nixon at the height of the Watergate scandal in 1974.

And yet a majority of the court has let the Texas law remain in place even as it is being challenged as unconstitutional.

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