by Mark Sherman and Jessica Gresco
WASHINGTON (AP) — A Supreme Court majority indicated Monday that they would allow abortion providers to challenge in court a controversial Texas law that nearly ended abortion in the nation’s second-largest state after six weeks of pregnancy. Have given.
But it was unclear how soon the court would rule and whether it would issue an order blocking the law that has been in effect for two months, or require providers to ask a lower court to withhold the law.
Justices Brett Kavanaugh and Amy Connie Barrett, two of former President Donald Trump’s conservative appointees, voted in September to allow the law to take effect, but they raised questions on Monday about its novel structure. The law, written to make it difficult to address legal challenges, subjects clinics, doctors and any others who facilitate abortions to large financial penalties.
“Millions and millions were imposed retrospectively, even though the activity was perfectly lawful under all court orders and at the time it was done, right?” Kavanaugh asked Judd E. Stone II, representing Texas, one of many questionable questions.
Barrett, too, pressed Stone about the provisions of the law that force providers to fight lawsuits one by one and, he said, do not allow their constitutional rights to be “fully broadcast”.
Justices heard three hours of arguments on Monday in two cases on whether abortion providers or the Justice Department can face federal court challenges to the law, which has an unusual enforcement plan, with its defenders arguing that it should be subject to federal court review. shielded from.
The Biden administration filed its lawsuit after justices voted 5-4 to deny the providers’ request to withhold the law. Justice Neil Gorsuch, a Trump appointee, and two other conservative judges joined Barrett and Kavanaugh in the majority to allow the law to take effect. Chief Justice John Roberts joined the court’s three liberal justices in disagreement.
Justices seemed less convinced that the Justice Department’s trial should proceed, and Justice Elena Kagan suggested that a decision in favor of the providers would allow the court to avoid the difficult issues of federal power.
In any case, it was argued on Monday that there is no right to abortion directly at issue. But the impetus for the lawsuits is that Texas law conflicts with landmark Supreme Court rulings that prevented a state from banning abortion in pregnancy.
Arguing for the United States, Solicitor General Elizabeth Preloger told the judges that the Texas law was enacted in “open opposition” to the Supreme Court’s precedent. “It created a law that clearly violates the precedents of this court,” she said.
The Supreme Court’s 1973 Roe v. Under the Wade decision and the Planned Parenthood v. Casey decision of 1992, states are prevented from banning abortion before viability, at which point a fetus can survive outside the womb, is approximately 24 weeks into the pregnancy.
Judges will hear a separate challenge to those decisions in the case of Mississippi’s ban on abortion after 15 weeks. Those arguments are set for December 1.
The most direct reference to the Mississippi case came from Justice Samuel Alito, who asked whether the decision by providers to stop performing abortions in Texas was “out of fear of liability if Roe or Casey is changed?”
But most of the questions focused on Texas law and how abortion has changed in the state even before the High Court made any changes to abortion law. Kagan told Stone that until Texas passed its law, “no state has dreamed of” trying to overturn the Supreme Court precedent.
If the Supreme Court does nothing about that, it said, it will invite states to try to set the precedent: “Guns. gay marriage. religious rights. Whatever you don’t like: go ahead,” she said. Kagan disagreed with her colleagues’ decision to let the law take effect, saying that Texas law “prevents women in Texas from exercising their constitutional right.”
Kavanaugh also raised concerns about laws that could affect other constitutional rights.
The Texas law has been in effect since September when the Supreme Court declined to intervene, except for a 48-hour period in early October when it was blocked by a lower court. Moving at an extraordinary pace, the High Court rejoined in less than two weeks. The court did not provide any explanation for its decision to hear the cases so expeditiously.
Even if the court allows the providers to continue their trial, it will still seek a separate order from the judges or a lower court to withhold the law.
Whole Women’s Health chief executive Amy Hagstrom Miller said four of her clinics would resume abortion services if they received a favorable court order.
The Texas ban, signed into law by Governor Greg Abbott in May, prohibits abortions after cardiac activity is detected in a fetus, usually around six weeks and some women learn they are pregnant.
The law makes exceptions for medical emergencies but not for rape or incest.
A study published by University of Texas researchers found that the number of abortions across the state fell by 50% since the law went into effect in September, compared to the same month in 2020. The study was based on data from 19 out of 24 abortions in the state. Clinics according to the Texas Policy Evaluation Project.
At least 12 other states have banned early pregnancy, but all have stopped taking effect.
Instead of state officials enforcing the law, Texas deputes private citizens to prosecute anyone who performs or aids in abortion and performs an abortion. If a suit bringer is successful, they are entitled to at least $10,000. Women who have an abortion cannot be prosecuted under the law.
During the debate on Monday, Roberts asked at one point whether the law could be challenged if Texas capped eligibility by more than $1 million. The Texas attorney told him no.
The structure of the law threatens abortion providers with heavy financial penalties for violating it. Clinics across the state have stopped performing abortions once cardiac activity is detected.
The result, both providers and the Biden administration said, is that women who are financially capable, have traveled to other states and who do not have the means must either continue their pregnancies against their will or have them terminated. Other potentially dangerous methods have to be found.
Stone and Jonathan Mitchell, an architect of the law, who also argued Monday, defended the law and its unusual structure. He said both the providers and the Justice Department do not have the authority to go to federal court, and should ask the justices, not Congress, to expand the court’s reach.
Fixes 2nd paragraph, restores missing “to”.