The justices were hearing separate challenges from the administration of President Joe Biden and abortion providers to Texas law.
In the first case, brought by abortion providers, the court in a 5-4 vote on September 1 refused to stop the law. But there were indications in the early stages of oral argument that dealt with a multitude of procedural arguments that some of the five conservative judges in the majority on Sept. 1 were still mulling legal questions.
Judge Amy Coney Barrett questioned clinic attorney Mark Hearron whether under the unusual structure of the law, the defendants could ever get a “full airing” of constitutional claims on the right to abortion. Under the law, abortion providers can raise the right to abortion as a defense only after they have been sued.
Judge Brett Kavanaugh also indicated that he was struggling with legal issues and was unsure whether to vote for Texas. He expressed interest in an outcome disputed by liberal magistrate Elena Kagan in which state court clerks would not be able to register lawsuits brought under the law.
Kavanaugh said Texas law “exploited” a loophole in judicial precedent about when state officials can be barred from enforcing unconstitutional laws. He wondered if the court should “close that loophole.”
Kavanaugh also wondered if states could pass similar laws that could violate other constitutional rights, including the right to bear arms. One state, for example, could allow $ 1 million in damages against anyone selling an AR-15 rifle, he said.
Kagan said the law was drafted by “some geniuses” to evade the broad legal principle that “states must not override federal constitutional rights.”
Other justices, including the conservative Chief Justice John Roberts, were skeptical about the idea of justices themselves being sued under the law. Roberts on September 1 had dissented along with the three liberal court judges.
Some conservative judges, including Judge Clarence Thomas and Samuel Alito, raised the question of whether someone would have the right to sue under Texas law without suffering direct injury.
Texas Attorney General Judd Stone, defending the law, said “outrage” based on opposition to abortion would be grounds for suing.
The Texas dispute reached the Supreme Court with unusual speed. The magistrates agreed to address the matter on October 22, bypassing the lower courts that are considering the challenges.
The challenges will determine whether federal courts can hear lawsuits aimed at repealing Texas law and whether the United States government can even sue to try to block it. If judges keep federal courts out of the process under the law’s unique design, it could be replicated in other states and restrict access to abortion in other parts of the country.
The Texas and Mississippi laws are among a series of Republican-backed abortion restrictions enforced at the state level in recent years. Lower courts blocked Mississippi law.
Opponents of abortion hope that the Supreme Court, with its 6-3 conservative majority, will revoke abortion rights or even overturn its Roe v. Wade of 1973 that recognized the constitutional right of a woman to terminate a pregnancy and legalized the procedure throughout the country.
The law prohibits abortion at a time when many women still do not realize they are pregnant. There is an exception for a documented medical emergency, but not for pregnancies resulting from incest or rape.
The Texas measure removes law enforcement from the hands of state officials and instead allows private citizens to sue anyone who practices or helps a woman have an abortion after heart activity is detected in the embryo.
That feature made it more difficult to sue the state directly, which helped prevent the law from being immediately blocked. Individual citizens can be awarded a minimum of $ 10,000 for filing successful lawsuits under the law. Critics have said that this provision allows people to act as bounty hunters against abortion.
Abortion providers and the Biden administration have called the law unconstitutional and explicitly designed to evade judicial review.
The design of the law has deterred most abortions in Texas, which is the second most populous state in the United States, behind only California, with about 29 million people.
The New Orleans-based United States Court of Appeals for the Fifth Circuit in the case of abortion providers refused to block the law, noting that federal courts lack jurisdiction to intervene. After a federal judge in the Biden administration’s challenge blocked the law on October 6, the Fifth Circuit quickly reinstated it.
Mississippi has asked justices to overturn Roe v. Wade. The Texas attorney general has indicated that he would also like to see that ruling overturned.