A Supreme Court majority on Monday signaled that it would allow abortion providers to challenge in court the controversial Texas law that virtually ended abortion in the nation’s second largest state after six weeks of pregnancy .
But it was not clear how quickly the court would rule and whether it would issue an order blocking the law that has been in effect for two months, or force providers to ask a lower court to suspend the law.
Justices Brett Kavanaugh and Amy Coney Barrett, two Tories appointed by former President Donald Trump, voted in September to allow the law to go into effect, but raised questions Monday about its new structure. The law, written to make legal challenges difficult, subjects clinics, doctors and anyone who facilitates abortions to heavy financial penalties.
“Millions and millions taxed retroactively, even though the activity was perfectly legal under all court orders and precedents at the time it was undertaken, right?” Kavanaugh asked, one of the many skeptical questions he posed to Judd E. Stone II, representing Texas.
Barrett also lobbied Stone over provisions in the law that require suppliers to sue one by one and, she said, do not allow their constitutional rights to be “fully publicized.”
Judges heard three hours of argument Monday in two cases over whether abortion providers or the Justice Department can challenge the law in federal courts, which has an unusual enforcement regime that , according to its advocates, protects it from review by a federal court.
The Biden administration filed a lawsuit after judges voted 5 to 4 to deny a vendor request to keep the law on hold. Judge Neil Gorsuch, also appointed by Trump, and two other Tory judges joined Barrett and Kavanaugh in the majority in letting the law take effect. Chief Justice John Roberts joined the three Liberal justices of the dissenting court.
Judges seemed less convinced that the Justice Department case should go ahead, and Judge Elena Kagan suggested that a ruling more in favor of suppliers would allow the court to avoid difficult issues with federal power.
In neither case is the right to abortion directly involved. But the motivation for the lawsuits is that Texas law conflicts with landmark Supreme Court rulings that prevent a state from banning early pregnancy abortion.
Pleading for the United States, Solicitor General Elizabeth Prelogar told justices the Texas law was enacted in “open defiance” to Supreme Court precedents. “He has enacted a law that clearly violates the precedents of this tribunal,” she said.
Under the Roe v. Wade of 1973 from the Supreme Court and Planned Parenthood v. Casey’s 1992 states are not allowed to ban abortion before viability, the point at which a fetus can survive outside the womb, around 24 weeks gestation.
Judges will hear a separate challenge to those rulings in a case over Mississippi’s 15-week abortion ban. These arguments are set for December 1.
The most direct reference to the Mississippi case came from Judge Samuel Alito, who asked whether providers’ decision to stop performing abortions in Texas “is due to fear of being held responsible if Roe or Casey is changed?
But most of the questions have focused on Texas law and how it changed abortion in the state even before the High Court changed the abortion law. Kagan told Stone that until Texas passed its law, “no state dreamed” of trying to sidestep the Supreme Court precedent in the same way.
If the Supreme Court does nothing about it, she said, it would invite states to try and flout precedent: “Guns. Same sex marriage. Religious rights. Anything you don’t like: go for it, ”she said. Kagan, who disagreed with her colleagues’ decision to let the law take effect, said Texas law prevents women in Texas from “exercising a constitutional right.”
Kavanaugh also raised concerns about laws that could affect other constitutional rights.
Texas law has been in effect since September, when the Supreme Court refused to intervene, except for a 48-hour period in early October when it was blocked by a lower court. The High Court got involved again less than two weeks ago, advancing at extraordinary speed. The court provided no explanation for its decision to hear the cases so quickly.
If the court allows vendors to continue their lawsuit, it will still require a separate order from the judges or a lower court to stay the law.
Amy Hagstrom Miller, chief executive of Whole Woman’s Health, said her four clinics would resume abortion services if they got a favorable court order.
The Texas ban, enacted by Governor Greg Abbott in May, bans abortion after heart activity is detected in a fetus, usually around six weeks old and before some women know they are pregnant.
The law provides exceptions for medical emergencies but not for rape or incest.
A study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% after the law came into effect in September, compared to the same month in 2020. The study was based on data from 19 of the state’s 24 abortions. clinics, according to the Texas Policy Evaluation Project.
At least 12 other states have enacted early pregnancy bans, but all have been prevented from coming into force.
Rather than having the law enforced by state officials, Texas charges private citizens to prosecute anyone who practices or assists and encourages an abortion. If someone who brings an action is successful, they are entitled to at least $ 10,000. Women who have an abortion cannot be prosecuted.
During arguments on Monday, Roberts asked at one point if the law could be challenged if Texas had raised the tariff much higher, $ 1 million. The Texas attorney told him no.
The structure of the law threatens abortion providers with huge financial penalties if they violate it. Clinics statewide have stopped performing abortions once heart activity is detected.
The result, according to providers and the Biden administration, is that women who are financially capable have traveled to other states and those who cannot afford it must either continue their pregnancy against their will or find other potentially dangerous means of ending it.
Stone and Jonathan Mitchell, an architect of the law who also appeared on Monday, defended the law and its unusual structure. They said vendors and the Justice Department did not have the right to go to federal court and should ask Congress, not judges, to expand access to courts.