The Texas abortion ban faced tough questions at the Supreme Court — even from Trump-appointed justices

​U.S. Supreme Court, 2021
U.S. Supreme Court, 2021

The Supreme Court heard arguments on Monday on the Texas law that effectively bans most abortions. Questions from two of Trump's appointees, Justices Brett Kavanaugh and Amy Coney Barrett, signal a skepticism of the law's constitutionality.

The Texas law has a novel means of enforcement. The state does not enforce the law, but rather allows private citizens to sue anyone who abets an abortion and for them to collect $10,000 if they win, effectively placing bounties on abortions. The enforcement mechanism allows the bill to dodge judicial review. Anyone who wishes to challenge the constitutionality of the law would usually sue the state, but because private citizens are the enforcers, the law intentionally leaves it a legally gray area. Justice Kavanaugh took issue with that particular provision and pressed Texas on it.

"Can I ask you about the implications of your position for other federal rights?"

Kavanaugh referred to a brief from the Firearms Policy Coalition, which said that the law might have unintended consequences and backfire on conservatives. The firearm rights group said that gun control advocates might be able to copy the language of the abortion law and apply it to Second Amendment rights.

Texas Solicitor General Judd Stone represented Texas and told Kavanaugh that Congress would be able to pass laws bolstering rights to protect them, such as free speech rights and Second Amendment rights. Kavanaugh responded, "Well for some of those examples, I think it would be quite difficult to get legislation through Congress."

Kavanaugh also asked Stone about a hypothetical law that would allow private citizens to sue anyone that sells an AR-15 for $1 million. But Stone dodged his questioning and responded "whether or not federal court review is available does not turn on the nature of the right."

Barrett also took issue with the enforcement mechanism. The law leaves in the air whether or not citizens can bring new lawsuits against abortion providers.

"You cannot get global relief," Barrett said to Stone. She then asked him if the law was "on an individual by individual basis." Stone said Barrett was correct and that there was no limit to how many private citizens can sue.

Meanwhile, Barrett showed sympathy to the abortion providers' arguments, asking Marc Hearron, who represented the abortion providers, if the law allows a "full airing" of the providers' constitutional rights. The law forbids providers from using the right to an abortion as a defense until they have been sued.

In September, the Supreme Court denied an injunction filed by abortion providers to stop the Texas law from going into effect, which anti-abortion activists cheered. But Mary Ziegler, a law professor at Florida State University, told The New York Times that because the court agreed to listen to arguments, "someone who was not on the fence is probably back on the fence."

Understand the importance of honest news ?

So do we.

The past year has been the most arduous of our lives. The Covid-19 pandemic continues to be catastrophic not only to our health - mental and physical - but also to the stability of millions of people. For all of us independent news organizations, it’s no exception.

We’ve covered everything thrown at us this past year and will continue to do so with your support. We’ve always understood the importance of calling out corruption, regardless of political affiliation.

We need your support in this difficult time. Every reader contribution, no matter the amount, makes a difference in allowing our newsroom to bring you the stories that matter, at a time when being informed is more important than ever. Invest with us.

Make a one-time contribution to Alternet All Access, or click here to become a subscriber. Thank you.

Click to donate by check.

DonateDonate by credit card
Donate by Paypal
{{ }}
@2022 - AlterNet Media Inc. All Rights Reserved. - "Poynter" fonts provided by