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Supreme Court appears skeptical of Texas abortion law

Even conservative justices expressed concern over the unusual structure of the law, which was designed to fend off challenges to its constitutionality.

WASHINGTON — A majority of justices on the Supreme Court appeared willing Monday to let abortion providers in Texas continue their challenge against the state's strict abortion law, which has all but stopped abortions in the state.

Texas asked the court to block a lawsuit brought in federal court by abortion clinics in Texas against S.B. 8, the nation's most restrictive abortion law, which bans abortion after doctors can detect a fetal heartbeat, about six weeks into a pregnancy. But a majority of the justices suggested they would let that challenge by abortion clinics to go forward.

They may be less willing to let a separate lawsuit proceed that was filed by the Justice Department.

Because the Supreme Court has ruled that states cannot ban abortion before the age of fetal viability, around 24 weeks, Texas officials could not enforce the ban themselves. Marc Hearron of the Center for Constitutional Rights said Texas has delegated enforcement of the law to any person anywhere who can sue any doctor who performs an abortion or anyone who aids in the procedure.

"The combined effect is to transform the state courts from a forum for the protection of rights, into a mechanism for nullifying them," he said.

The justices must decide whether abortion providers in Texas and the Justice Department have the legal right to challenge the law in court and to seek orders banning state court clerks and judges from doing anything in response to the lawsuits.

Several justices suggested that the federal courts have no authority to block a lawsuit against state court judges. But some suggested they may be open to barring state court clerks from docketing any lawsuits filed under S.B. 8.

The court's more liberal members were clearly hostile to the structure of S.B. 8.

"The entire point of the law is to find the chink in the armor" of the court's rulings that block injunctions against state court judges but allow the federal courts to block state officials from carrying out unconstitutional laws, said Justice Elena Kagan.

"The fact that after all these many years some geniuses came up with a way to evade the commands of that decision," Kagan said, "as well as the command of the even broader principle that states are not to nullify federal constitutional rights and say, 'Oh, we've never seen this before so we can't do anything about it,' I guess I just don't understand the argument."

Those suing can collect at least $10,000, potentially subjecting abortion providers to the prospect of repeated and ruinous lawsuits. Justice Amy Coney Barrett — who expressed her opposition to abortion before joining the Supreme Court — questioned that aspect of the Texas law, which could allow continued lawsuits despite an abortion provider getting a court order to block a specific suit.

"Even if they identify a private potential plaintiff who expresses the intent to sue, injunction would run only against that one plaintiff," she said.

Judd Stone, the state solicitor general in Texas, told the court that the challengers have no legal authority to sue the state, because the law does not give state officials any role in enforcing S.B. 8. "Federal courts don't enjoin laws, they enjoin officials who enforce the laws," he said.

But even some of the court's conservatives seemed concerned about the attempt by Texas to structure a law that deprives residents of a constitutional right but is intended to make it impossible to challenge the law in federal court.

A state could provide that "everyone who sells an AR-15 is liable for a million dollars to any citizen," said Justice Brett Kavanaugh.

Kagan said that "we would live in a very different world from the world we live in today" if the court blocked the administration from challenging laws that violate constitutional rights.

"I mean, that was something that, until this law came along, no state dreamed of doing," she said. "And essentially we would be like, ‘We’re open for business. There’s nothing the Supreme Court can do about it. Gun same-sex marriage, religious rights, whatever you don’t like, go ahead.’"

The Supreme Court twice refused to block enforcement of the law while the two challenges worked their way through the courts. But it did agree to take up the appeals on a fast track.

Even so, the court isn't likely to issue its decision until the spring in such a complicated case involving a novel state law. The Texas law will remain in effect in the meantime. And on Dec. 1, the court will take up an even bigger challenge to abortion rights. Mississippi will urge the court to overrule Roe v. Wade and declare that there is no constitutional right to abortion.