US Supreme Court leans to allow challenge of abortion law in Texas

  • Texas law prohibits abortions after about six weeks
  • Abortion rights in the United States are balanced at the Supreme Court
  • Judges skeptical of Biden administration prosecution

WASHINGTON, Nov. 1 (Reuters) – Two months after allowing a near-total abortion ban in Texas to go into effect, conservative U.S. Supreme Court justices on Monday announced they were reconsidering their positions and may let abortion providers pursue an attempt to invalidate the law.

On September 1, the court refused to stop the law in a 5-4 decision, with all but one of its six Tory judges in the majority. During three hours of oral argument on Monday, at least two of the judges who had authorized law enforcement – Brett Kavanaugh and Amy Coney Barrett – appeared to lean in allowing abortion providers to continue their legal challenge.

Court conservatives seemed more skeptical about whether to let Democratic President Joe Biden’s administration pursue its own challenge. The Justice Department sued Texas in September in an attempt to block the Republican-backed law.

Administration and abortion providers have said the law violates a woman’s constitutional right to terminate a pregnancy, recognized in the landmark Roe v. Wade of the 1973 court and is impermissibly designed to escape federal judicial review.

The law imposes the tightest abortion restrictions in the country, banning it after about six weeks of pregnancy – a time when many women don’t realize they are pregnant – with no exceptions for pregnancies resulting from pregnancy. incest or rape. It is part of a wave of Republican-backed abortion laws in recent years. Abortion opponents hope the court’s conservative 6-3 majority will reduce abortion rights or even overthrow Roe v. Wade.

Some justices have pointed out that the existing Supreme Court precedent could accommodate lawsuits brought by abortion providers despite the law’s innovative design that makes it difficult for federal courts to block it. The law allows private citizens rather than state officials to enforce it through legal action against providers and others who help a woman obtain an abortion.

Depending on the approach judges take, they could block the law altogether or pave the way for a trial judge to do so. If judges keep federal courts out of the process under the design of the law, this could be replicated in various other states seeking to restrict access to abortion.

Abortion rights in the United States are at stake as judges review Texas law before hearing arguments Dec. 1 over the legality of a Mississippi measure, blocked by lower courts, banning the procedure after 15 weeks of pregnancy.


Texas Attorney General Ken Paxton addresses a crowd of anti-abortion supporters at the United States Supreme Court following arguments over a challenge to a Texas law banning abortion after six weeks in Washington, USA, November 1, 2021. REUTERS / Evelyn Hockstein

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Barrett asked clinic lawyer Marc Hearron if, under the structure of the law, constitutional claims to abortion rights could ever be “fully publicized”. By law, abortion providers can only raise this constitutional question as a defense after they have been prosecuted.

Kavanaugh expressed interest in a result raised by Liberal Judge Elena Kagan in which state court clerks would not be allowed to allow lawsuits from individuals seeking enforcement while legality litigation of the measurement is taking place.

Kavanaugh questioned whether states could pass similar laws that violate other constitutional rights, including gun rights. A state, for example, could allow $ 1 million in damages against anyone who sells an AR-15 rifle, he said. Kavanaugh also questioned whether it could fill a loophole “exploited” by the Texas measure in court precedents regarding when state officials can be barred from enforcing unconstitutional laws.

His tone was more skeptical of the Biden administration trial, telling US Solicitor General Elizabeth Prelogar the challenge was “different, irregular and unusual.”

Kagan said the law was written by “some geniuses” to escape the general legal principle that “states should not override federal constitutional rights.” Kagan warned of the consequences of passing laws by states that violate rights, including same-sex marriage and religious freedom.

The Texas measure allows individuals to sue anyone who performs or helps a woman have an abortion after heart activity is detected in the embryo. This feature made it more difficult to sue the state directly. Individual citizens can be awarded a minimum of $ 10,000 for successfully filing lawsuits under the law. Biden’s administration called it a “bounty.”

Conservative Justices Clarence Thomas and Samuel Alito have asked if anyone would have standing to sue under the law without suffering direct harm. Texas Attorney General Judd Stone, defending the law, said personal “outrage” over abortion would be enough to warrant legal action.

The law has deterred abortion providers from facing countless potentially costly lawsuits in Texas – the second most populous US state behind California, with an estimated 29 million people.

The court agreed to take the case on October 22, bypassing lower courts given the challenges.

Reporting by Andrew Chung and Lawrence Hurley in Washington; Additional reports by Jan Wolfe; Editing by Will Dunham

Our standards: Thomson Reuters Trust Principles.

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