The Supreme Court listened to two challenges to Texas’ controversial abortion law Monday. The video shows clips from oral arguments. The Supreme Court hearings could be the final stop in weeks of challenges since the law took effect back in September.
The challenges come in the form of cases Whole Woman’s Health v. Jackson and United States v. Texas. Neither case focuses on the constitutionality of the law itself, but rather whether or not abortion providers or the Justice Department can mount federal court challenges to the law.
A majority of the Supreme Court signaled they would allow abortion providers to pursue a court challenge to the law. The justices sounded less convinced that the Justice Department lawsuit should go forward. However, it was unclear how quickly the court would rule. It was also unclear whether it would issue an order blocking the law or require providers to ask a lower court put the law on hold.
At the heart of the challenge is the enforcement of the law. Rather than have state officials enforce it, the law deputizes private citizens to sue anyone who performs or aids and abets an abortion. If the lawsuit is successful, those who sue are entitled to at least $10,000.
Justice Brett Kavanaugh suggested Monday the unusual enforcement scheme could be problematic.
“There’s a loophole that’s been exploited here, or used here,” he said. Kavanaugh suggested the “principle” and “whole sweep” of a 1908 Supreme Court case would “suggest extending the principle here, arguably” and closing the loophole.
In their briefs, the state of Texas and architect of the law Jonathan Mitchell said the providers and the Justice Department lack the right to go into federal court, and can’t sue state judges and clerks who are not responsible for enforcing the abortion law. Texas and Mitchell also said there is no effective way of blocking the law, in part because federal courts can’t force state judges to abstain from hearing the lawsuits the law authorizes.
The court has another abortion case coming up after this one. The justices will hear a separate challenge to the decisions in Roe v. Wade and Planned Parenthood v. Casey in a case over Mississippi’s ban on abortion after 15 weeks on Dec. 1.