Nov 1, 2021 - Politics & Policy

Supreme Court seems open to lawsuits challenging Texas abortion ban

Picture of the Supreme Court building
Photo: Mandel Ngan/AFP via Getty Images

The Supreme Court on Monday seemed likely to let legal challenges to Texas' near-total abortion ban proceed.

Why it matters: A majority of the justices — including two Trump nominees, Justices Brett Kavanaugh and Amy Coney Barrett — seemed concerned with the way Texas has tried to evade legal challenges in federal courts.

Details: Kavanaugh said the Texas law “exploited” a loophole in the legal system, and wondered if the court should “close that loophole.” Barrett echoed that concern.

  • Most abortion restorations are simply enforced by state officials. So, if they're blocked by the courts, the courts tell the relevant state officials not to enforce them.
  • Texas, though, does not directly enforce its new abortion ban. It allows private citizens to sue other private citizens who facilitate an abortion.
  • Several justices, including Kavanaugh, were concerned about setting a precedent that would allow states to use a similar type of enforcement to deny their residents other constitutionally protected rights. That could include "guns, same-sex marriage, religious rights, whatever you don’t like," Justice Elena Kagan said.

"If the court were to hold that federal courts are powerless to stop state laws that prohibit the exercise of a fundamental federal constitutional right, then that gives states an easy avenue to get around Roe and Casey," Marc Hearron, senior counsel for the Center for Reproductive Rights, said in a press call in October.

Between the lines: A majority of the justices seemed likely to let abortion providers challenge Texas' law, but the court was somewhat more skeptical about the Justice Department's ability to bring such a suit.

  • Oral arguments are only a rough guide to the justices' thinking, and it's difficult to draw firm conclusions about how they'll rule.
  • The court today wasn't considering the merits of Texas' law, only whether it can be challenged in federal court.

What's next: The court is scheduled to hear a case on Mississippi's 15-week abortion ban — a direct challenge to Roe v. Wadeon Dec. 1.

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