Throughout close to three hours of rousing arguments on Monday at the Supreme Court, a majority of the justices appeared inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a federal court challenge to a Texas law that has significantly reduced the number of abortions available in the state.
A significant departure from a 5-4 decision in September that permitted the legislation to go into force would be represented by this decision. Justices Brett Kavanaugh and Amy Coney Barrett, who were in the majority in that decision, posed questions that suggested they believed the unusual form of the Texas statute warranted enabling the providers to challenge it. Kavanaugh and Barrett were not in the majority in that decision.
According to Kavanaugh, allowing a challenge may be seen as eliminating a legal gap. Barrett said that the statute was written in such a way that providers would be unable to mount a “complete constitutional defence.”
A judgement of this kind would not bring the matter to a close or address the question of whether the statute itself is constitutional. Instead, it would remand the matter to a lower court for additional processes to be conducted. Also unclear was whether the court would order a temporary stay of the legislation until after the dispute was resolved, if either the providers or the administration filed a lawsuit against the government.
The legislation, which took effect on Sept. 1, was crafted with the intention of avoiding scrutiny in federal court, a goal that the state has so far fulfilled successfully. In the wake of the legislation, which prohibits most abortions after around six weeks and makes no exceptions for pregnancies occurring from rape or incest, many women seeking abortions in the state have been turned away by clinics in the state.
In light of two landmark Supreme Court decisions, Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992, there is no doubt that the prohibition itself is unlawful in its current form. Those verdicts banned states from prohibiting abortions before foetal viability, which occurs at around 23 weeks of pregnancy.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, who joined Chief Justice John Roberts in dissenting against the bill in September, did not seem to have altered their thoughts about the statute. In addition, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch raised questions that showed they did not believe the federal courts had a role to play in this matter.
As a hypothetical issue, Roberts brought out an important point about the statute, which permits plaintiffs who suit under it to receive an award of at least $10,000 if they won.
‘Assume that the prize is not $10,000, but a million dollars,’ Roberts added before asking if a “chilling effect” on the behaviour at issue in this instance would be sufficient to warrant a federal court review before the state court process was completed.
According to Breyer, there are six ways in which lawsuits filed under the Texas legislation vary from other types of lawsuits. Secondly, he said, pointing out that the state is larger than Rhode Island and so allows them to suit anyplace in the state.
Third, he asserted that winning one lawsuit does not serve as a defence in future lawsuits. Fourth, he said that successful plaintiffs are entitled to reimbursement of their legal expenses, while prevailing defendants are required to pay their own attorneys. He ranked the $10,000 bounty as the fifth most important. Sixth, he said, were the restrictions put on defendants’ capacity to defend themselves on constitutional grounds, as enacted by the legislature.
As a result, it is difficult for challengers to determine who they should sue, since lawsuits seeking to overturn laws on the grounds that they are unconstitutional generally list as defendants the people responsible for implementing the laws. While filing their lawsuit in federal court, the providers listed as defendants, among others, every state trial court judge and county court clerk in the state of Texas.