Abortion activists ‘pleased’ as SCOTUS appears to show support for Texas law challenge

Liberal, conservative justices both questioned implications of Texas law

Activists supporting the right of women to have abortions celebrated outside of the US Supreme Court after oral arguments over Texas’s new law banning abortions after six weeks into the pregnancy were heard.

Several justices on Monday appeared to favour the arguments of activists and legal experts who have argued that the unconventional Texas law is a naked attempt to circumvent a right already established by the Supreme Court.

“We’re pleased, obviously. Several of the justices had concerns about the broad implications if a state is allowed to nullify a federal right through a scheme like [the Texas law],” said Marc Hearron, a counsel for the Center for Reproductive Rights.

Marc Hearron, who represents abortion clinics and providers challenging TX abortion law before SCOTUS:

“We’re pleased, obviously. Several of the justices had concerns about the broad implications if a state is allowed to nullify a federal right through a scheme like TX SB 8.” pic.twitter.com/9EvAoVOXig

— The Recount (@therecount) November 1, 2021

Justice Elena Kagan offered some of the most direct criticism of the Texas law, and hammered the state’s attorneys for claiming that the implementation of the law had only hypothetical consequences, referring to the sharp drop in abortions performed in the state following the law taking effect.

“That’s not a hypothetical. That’s actual,” she told the state’s attorneys.

The justice continued, remarking that the law appeared to be the result of “some geniuses [coming] up with a way to say the states can nullify federal law”. The Texas law is structured in a way that prevents state officials from enforcing it, while encouraging state residents to enforce it through private lawsuits. Critics have said that the carve-out is a naked attempt to get around language barring the public enforcement of anti-abortion laws.

Justices on the court’s conservative wing, which holds the majority, also showed skepticism towards the state’s claims that the law did not intrude on constitutional rights, with Brett Kavanaugh implying that the legislation could lead to other states banning other constitutional rights by using the enforcement workaround in similar ways.

Mr Kavanaugh brought up a hypothetical in his questioning, considering whether a Democratic-led state could institute a law allowing state residents to sue anybody who sold an AR-15 in their state.

Judd Stone, Texas’ solicitor general, admitted in response that the precedent set by allowing the Texas law to continue could allow that possibility to occur as well.

The concern was echoed by the US Solicitor General, Elizabeth Prelogar, in her own arguments. The Biden administration’s litigator argued that “no constitutional right is safe” if precedent were to allow other states to use civilian enforcement through the courts to tamp down on practices upon which the court has ruled the state or federal government cannot infringe.

“Our constitutional guarantees cannot be that fragile and the supremacy of federal law cannot be that easily subject to manipulation,” Ms Prelogar said.

The marked skepticism from justices so early in the arguments process seems to indicate that the court could eventually end up ruling against the Texas law, which went into effect at the beginning of October. The court’s decision will likely not come until next year; the justices are also set to take up a challenge to Roe V Wade, the landmark abortion rights case, from Mississippi this fall.

Justices on the court, particularly the conservative majority, faced intense criticism last month after declining to take up an emergency plea for a halt in the implementation of the new law. As activists predicted at the time, the number of abortions performed in Texas has dropped by roughly half since the law went into effect.

Opponents of the Texas bill note that many women are not even aware of their pregnancies before six weeks have passed since conception; its supporters contend that six weeks is enough time for women and defended the lack of exceptions in the bill for instances of rape or incest.

Abortion rights supporters have long feared what a conservative-majority Supreme Court would do to Roe v Wade and other landmark cases including Planned Parenthood v Casey; many took the court’s decision to deny an emergency plea last month as a sign that the law would be upheld at the time.