U.S. Supreme Court leans toward allowing challenge to Texas abortion law
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[November 02, 2021]
By Andrew Chung and Lawrence Hurley
WASHINGTON (Reuters) -Two months after
letting a near-total ban on abortion in Texas take effect, conservative
U.S. Supreme Court justices on Monday signaled they are reconsidering
their positions and could let abortion providers pursue a bid to
invalidate the law.
The court on Sept. 1 declined to halt the law in a 5-4 decision with all
but one of its six conservative justices in the majority. During three
hours of oral arguments on Monday, at least two of the justices who had
allowed the law to be enforced - Brett Kavanaugh and Amy Coney Barrett -
appeared to lean toward permitting abortion providers to proceed with
their legal challenge.
The court's 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 seeking to
block the Republican-backed law.
The administration and abortion providers have said the law violates a
woman's constitutional right to terminate a pregnancy recognized in the
court's landmark 1973 Roe v. Wade ruling and is impermissibly designed
to evade federal judicial review.
The law imposes the nation's toughest abortion restrictions, banning it
after about six weeks of pregnancy - a time when many women do not
realize they are pregnant - with no exceptions for pregnancies resulting
from incest or rape. It is one of a wave of Republican-backed state
abortion laws in recent years. Abortion opponents hope the court's 6-3
conservative majority will pare back abortion rights or even overturn
Roe v. Wade.
Some justices signaled that existing Supreme Court precedent could
accommodate the lawsuit by the abortion providers despite the law's
novel design that makes it difficult for federal courts to block it. The
law lets private citizens rather than state officials enforce it through
lawsuits against providers and others who assist a woman in obtaining an
abortion.
Depending on what approach the justices take, they could block the law
entirely or pave the way for a lower court judge to do so. If the
justices keep federal courts out of the process by virtue of the law's
design, it could be replicated in various other states seeking to
curtail abortion access.
U.S. abortion rights are hanging in the balance as the justices review
the Texas law before hearing arguments on Dec. 1 over the legality of a
Mississippi measure, blocked by lower courts, prohibiting the procedure
after 15 weeks of pregnancy.
'FULLY AIRED'
Barrett asked clinic lawyer Marc Hearron about whether under the law's
structure the constitutional claims on the right to abortion could ever
be "fully aired." Under the law, abortion providers can bring up that
constitutional issue as a defense only after they have been sued.
Kavanaugh expressed interest in an outcome raised by liberal Justice
Elena Kagan in which state court clerks would be barred from allowing
lawsuits brought by private individuals seeking to enforce the law to
proceed while litigation over the legality of the measure unfolds.
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Attorney Marc Hearron with the Center for Reproductive Rights and
attorney Julie Murray with Planned Parenthood, speak to the media
following arguments over a challenge to a Texas law that bans
abortion after six weeks, in front of the United States Supreme
Court in Washington, U.S., November 1, 2021. REUTERS/Evelyn
Hockstein
Kavanaugh wondered if states could pass similar laws
infringing on other constitutional rights including gun rights. A
state, for example, could allow for $1 million in damages against
anyone who sells an AR-15 rifle, he said. Kavanaugh also wondered
about closing a loophole "exploited" by the Texas measure in the
court's precedents concerning when state officials can be barred
from enforcing unconstitutional laws.
His tone was more skeptical toward the Biden administration lawsuit,
telling U.S. Solicitor General Elizabeth Prelogar that challenge was
"different and irregular and unusual."
Kagan said the law was written by "some geniuses" to evade the broad
legal principle that "states are not to nullify federal
constitutional rights." Kagan warned of the consequences of states
passing laws that infringe upon rights, including same-sex marriage
and religious liberty.
The Texas measure enables private citizens to sue anyone who
performs or assists a woman in getting an abortion after cardiac
activity is detected in the embryo. That feature made it more
difficult to directly sue the state. Individual citizens can be
awarded a minimum of $10,000 for bringing successful lawsuits under
the law. Biden's administration has called it a "bounty."
Conservative justices Clarence Thomas and Samuel Alito asked whether
anyone would have standing to sue under the law without having a
direct injury. Texas Solicitor General Judd Stone, defending the
law, said personal "outrage" toward abortion would be enough to
justify a lawsuit.
The law has deterred abortion providers facing innumerable
potentially costly lawsuits in Texas - the second most-populous U.S.
state behind only California, with about 29 million people.
The court agreed to take up the matter on Oct. 22, bypassing lower
courts considering the challenges.
(Reporting by Andrew Chung and Lawrence Hurley in Washington;
Additional reporting by Jan Wolfe; Editing by Will Dunham)
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