An abortion rights activist gave her name as Ofjohn while standing in front of the US Supreme Court in Washington, USA, in November in the US Supreme Court in Washington, USA, as judges heard arguments about a challenge to a Texan law, bans abortion after six weeks 1, 2021.
Leah Millis | Reuters
The Supreme Court on Monday debated questions about the “unprecedented” structure of a Texas law that empowers private individuals to enforce a ban on most abortions as early as six weeks of gestation.
In oral arguments in favor of lawsuits from the Biden government and abortion providers that were speeded up to the Supreme Court, some of the judges who had previously turned down an offer to block Texas law signaled that they were concerned about the way it was was written, worried.
“There is a loophole here that has been exploited,” noted Judge Brett Kavanaugh, reiterating Liberal Judge Elena Kagan. He asked whether the Supreme Court should extend the court precedent in relation to federal proceedings against state officials “to essentially fill that loophole.”
Judge Amy Coney Barrett asked if the constitutional questions raised by the law could ever be “fully resolved” because of its structure and wording.
Arguments on Monday did not center around whether Texas law violated Roe v. Wade and Planned Parenthood v. Casey, the longstanding court rulings preventing states from banning abortions before the fetus is viable. Rather, the judges were concerned with the question of whether Texas abortion providers and attorneys and the Department of Justice have the ability to challenge the law in court.
The petitioners both accused Texas law, SB 8, which was designed to thwart attempts to challenge its legality by delegating enforcement from state officials to private individuals empowered to sue anyone for at least $ 10,000 who “helps or promotes” an abortion.
“Maintaining the Texas scheme would provide a roadmap for other states to overturn any decision by this court that they disagree with,” said Marc Hearron, attorney for the Reproductive Rights Center, who argued that the abortion laws should be allowed go forward.
Texas Attorney General Ken Paxton speaks to a crowd of anti-abortion opponents in the U.S. Supreme Court after arguments over a challenge to a Texas law passed on Jan.
Evelyn Hockstein | Reuters
SB 8 was signed by Republican Governor Greg Abbott in May and went into effect in September. It bans almost all abortions in Texas by banning the procedure after a fetal heartbeat is detected, a point at which most women do not yet know they are pregnant. The law includes an exception for medical emergencies, but none for pregnancies due to rape or incest.
The law’s defenders argued that since the abortion law is not enforced by the state, they are not the ones to defend it in court.
“The state passed law giving them the opportunity to sue, and then they washed their hands,” argued Jonathan Mitchell, who is known as the architect of Texas law.
During the arguments of Texas Attorney General Judd Stone, Kagan appeared to be openly hostile to the law, saying the whole purpose of SB 8 was to “find the rift in the armor” of the court precedent regarding judicial review.
“The fact that after all these years some geniuses have found a way to evade [that precedent, and] the even broader principle that states cannot overturn federal constitutional rights and say, “Oh, we’ve never seen this before, so there’s nothing we can do about it” … I think I just don’t get the argument “Said Kagan.
It is unclear when the court will issue its decision. Judges agreed to expedite hearing both the DOJ and abortion providers’ lawsuits while SB 8 remained in effect in Texas. But the novel questions raised by the law may not result in an accelerated decision.
Judges on Dec. 1 in another case, Dobbs v Jackson Women’s Health Organization, will hear arguments aimed directly at Roe and Casey, the judgments that have upheld abortion law for decades.
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