WASHINGTON (CN) — Focused not on the merits of what has become the country's toughest restriction on abortion but on how the law is enforced, through private citizens deputized to sue those who infringe its rules, the Supreme Court suggested Monday that the so-called Texas Heartbeat Act will have a short shelf life.
“There's a loophole that's been exploited here,” Justice Brett Kavanaugh said.
Senate Bill 8, as the law has been codified, bans all abortions after the detection of fetal cardiac activity — approximately six weeks after a woman’s last menstrual period and two weeks after a woman’s first missed period — with no exceptions for cases of rape or incest.
The law has drawn challenges both from abortion providers led by Whole Woman's Health and the U.S. Department of Justice, which say Texas is in clear violation of Roe v. Wade and the 1992 case Planned Parenthood v. Casey, which implemented what is known as a viability analysis focused on laws that ban abortions before the point when a fetus can survive outside the womb, usually at about 23 or 24 weeks in utero.
Because pre-enforcement review has managed to thwart abortion opponents working to overturn Roe v. Wade, Texas meant to sidestep that problem by barring state officials from carrying out enforcement.
Kavanaugh cited an amicus brief in the case filed by the Fire Arms Policy Coalition, which argues the enforcement mechanism in SB 8 could be used to nullify other constitutional rights. In a hypothetical, Kavanaugh asked if anyone who sells an AR-15 could be sued for a million dollars by any citizen.
Texas Solicitor General Judd Stone did not back down, replying: “My answer on whether or not the federal court review is available does not turn on the nature of the right.”
“We can assume that this will be across the board equally applicable as the Firearms Policy Coalition says to all constitutional rights,” Kavanaugh pressed.
Stone answered yes.
The attorney representing the abortion providers argued this point as well.
“I think the real danger is if this court does not allow the suit, then that will provide a roadmap for other states to abrogate other rights that have been recognized by this court,” said Marc Hearron, the senior counsel at the Center for Reproductive Rights.
The case brought by abortion providers must hurdle the question of whether the clinics sued the correct defendants. As the providers see it, a doctrine known as Ex Parte Young supports an injunction against the clerks they had sued to stop the ban because the precedent holds that state officials trying to enforce unconstitutional laws can be sued in federal court.
Justice Amy Coney Barrett prodded the structure of the law and its constitutionality. She said, even if an individual plaintiff was identified in the case — which it wasn’t in this case because those sued were judges and clerks in an attempt to block enforcement of the law, the injunction would only apply to that one individual.
“I think the answer, because you're shifting, is that you cannot get kind of global relief in the same way that pre-enforcement challenge under Ex Parte Young in federal court gives you relief from the prospect that the statute will be enforced against you," Barrett said, "and you're saying that in state court, these pre-enforcement actions do not offer that. They're just on an individual-by-individual basis.”
The Trump appointee also opined on if the constitutional issues could even be addressed in the state courts.
“I'm wondering if, in a defensive posture in state court, the constitutional defense can be fully aired,” she said.
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