JONATHAN ERNST Abortion rights advocates on Monday got a shred of hope in their battle against an extreme Texas abortion law from an unlikely place: the U.S. Supreme Court.
After several lower courts failed to block the six-week ban , which took effect Sept. 1, advocates were concerned that the newly conservative court would again allow the six-month abortion ban to stand, as it had last month. But Justices Brett Kavanaugh and Amy Coney Barrett—both appointees of President Donald Trump—surprised observers by asking tough questions of Texas Solicitor General Judd E. Stone II during oral arguments.
The Texas law is novel because it allows private citizens to sue anyone believed to have aided or abetted an abortion after six weeks, rather than relying on the state to enforce the ban. Though a ban on abortion this early in gestation blatantly contradicts Supreme Court precedent and makes it the harshest abortion restriction in the country, this enforcement mechanism makes the law more difficult to challenge in court.
In surprising comments Monday, Kavanaugh referred to this enforcement mechanism as a “loophole” and questioned whether the court should close it. Kavanaugh also seemed concerned that the Texas model could be used to pass laws curtailing other rights, like gun ownership, same-sex marriage, and free speech. Barrett, meanwhile, pushed back on Texas’ argument that challenges to the law should be heard in lower courts first, questioning whether providers could ever get full relief that way.
The conservative side of the bench seemed more skeptical of the arguments presented in a separate challenge to the law, which was also argued Monday by U.S. Solicitor General Elizabeth Prelogar on behalf of the Department of Justice. The justices questioned whether the Justice Department was overstepping its boundaries by bringing the case, which was filed after several suits by providers failed to block the law.