By Konstantinos Haidas
London, United Kingdom
Oral arguments were recently put forward at the Supreme Court on the Texas law that prohibits most abortions after 6 weeks, the most restrictive and controversial abortion law in the country. The focus was on whether Texas can allow private citizens to enforce the abortion ban, leading to the greater question of whether the federal government then has the right to overrule the law in court. After the Court allowed the law to remain in place last month, two crucial conservative judges seemed open to providing abortion providers the opportunity to state their case as to why they should be able to challenge the ban in federal court. The justices listened to arguments for nearly three hours, limiting their review to the law’s novel structure, which gives private citizens have the right to bring civil suits against anyone who assists a pregnant person who has received an abortion in violation of the law—anyone from the person who drove them to their appointment to their significant other that was aware of it.
Marc Hearron, attorney for the Center for Reproductive Rights, represented the coalition of abortion providers, stating that the state legislature does not have the right to construct a law that is protected from review in federal courts. He argued that the providers deserve to proceed with a lawsuit directed at both Texas officials and state court judges, clerks and any private parties that played a part in implementing the law. While under normal circumstances, the state would be protected from such a lawsuit, Hearron reasoned that as a federal constitutional right is under direct attack and private individuals have been granted the role of agents of the state, the case can proceed. He expressed the critical idea that the law was designed to make challenges in federal court nearly impossible.
Texas Solicitor General Judd Stone explained that the case should not be able to move forwards in federal courts as the state is not the pertinent defendant since the law prohibits state officials from enforcing it and allows for civil lawsuits to take place. US Solicitor General Elizabeth Prelogar labeled Hearron’s suit a “brazen attack” on the coordinate branches of the federal government. She strongly defended the government’s ability to challenge the law during her case.
Justice Amy Coney Barrett was uncomfortable with the idea that a federal court cannot hear the challenge, questioning whether a federal constitutional defense “can be fully aired” in state courts. She remarked that a state court hearing would not be sufficient in expressing constitutional complaints. Justice Brett Kavanaugh raised the issue of other states copying the law to restrict other rights such as gun control and free speech. He asked whether the law could not be “easily replicated in other states that disfavor other constitutional rights.” However, it is important to note that, while these two judges seemed sympathetic to Hearron’s argument, both had previously voted to allow the law to remain in place.
Conservative Justice Neil Gorsuch surfaced as the leading defender of the Texas law, while Justice Elena Kagan voiced the most criticism, declaring that the law evades broad legal principles that states are not able to negate or neglect constitutional rights. Kagan continued her attack on the law by reinforcing Kavanaugh’s point that it sets the precedent for other states to try to invalidate laws when it comes to hindering rights, emphasizing that there would be nothing the Supreme Court could do at that point.
The decision of the Supreme Court to fast-track the oral arguments is seen by some as evidence that they will act sooner rather than later.