After several lower courts failed to block the six-week ban, which took effect Sept. 1, advocates were concerned that the newly conservative court would again allow the six-month abortion ban to stand, as it had last month. But Justices Brett Kavanaugh and Amy Coney Barrett—both appointees of President Donald Trump—surprised observers by asking tough questions of Texas Solicitor General Judd E. Stone II during oral arguments.
The Texas law is novel because it allows private citizens to sue anyone believed to have aided or abetted an abortion after six weeks, rather than relying on the state to enforce the ban. Though a ban on abortion this early in gestation blatantly contradicts Supreme Court precedent and makes it the harshest abortion restriction in the country, this enforcement mechanism makes the law more difficult to challenge in court.
In surprising comments Monday, Kavanaugh referred to this enforcement mechanism as a “loophole” and questioned whether the court should close it. Kavanaugh also seemed concerned that the Texas model could be used to pass laws curtailing other rights, like gun ownership, same-sex marriage, and free speech. Barrett, meanwhile, pushed back on Texas’ argument that challenges to the law should be heard in lower courts first, questioning whether providers could ever get full relief that way.
The conservative side of the bench seemed more skeptical of the arguments presented in a separate challenge to the law, which was also argued Monday by U.S. Solicitor General Elizabeth Prelogar on behalf of the Department of Justice. The justices questioned whether the Justice Department was overstepping its boundaries by bringing the case, which was filed after several suits by providers failed to block the law.
Kavanaugh called the Justice Department’s challenge “unusual,” and Chief Justice John Roberts suggested it was claiming a “limitless, ill-defined authority.” Justice Neil Gorsuch suggested an injunction in this case would be too broad, asking, “Are you aware of a precedent that permits an injunction against all persons in the country, the world, the cosmos?”
But Prelogar argued that this line of argument would result in a world where “no one can sue—not the women whose rights are most directly affected, not the providers … and not the United States.”
“Our constitutional guarantees cannot be that fragile and the supremacy of federal law cannot be that easily subject to manipulation,” she said.
Even if the court sides with the providers or the Justice Department, the law will not immediately be repealed. Instead, it will head back to the Fifth Circuit, which ruled earlier this month to let the law take effect while it considers the constitutionality of the legislation. Abortion rights advocates are still hoping that the Supreme Court will block the law until the Fifth Circuit makes its decision.
The law has already had a devastating effect on abortions in Texas and the surrounding areas. The number of abortions performed in Texas dropped 50 percent in the 30 days after the law was enacted, according to recently released data from the University of Texas at Austin. Clinics in surrounding states have also seen a dramatic increase in patients from Texas, resulting in longer wait times and delays.
Justice Elena Kagan raised this issue during questioning Monday, saying that justices often have to speculate as to what the chilling effect of the law would be on someone’s constitutional right.
With this law, she said, “We’re not guessing. We know exactly what has happened as a result of this law. It has chilled everybody on the ground.”