After nearly three hours of oral arguments before the U.S. Supreme Court on Nov. 1, it appears a majority of justices is poised to overrule Texas’ draconian abortion law.
It’s a fool’s game to predict any Supreme Court decision, but the critical and skeptical line of questioning from many of the justices, particularly conservatives Brett Kavanaugh and Amy Coney Barrett, underscored serious concerns about the law’s unique and troubling structure.
Texas’ newest abortion law allows any private citizen to sue an abortion provider or any other person, including a driver, who helps a woman obtain an abortion. If successful, they can collect a bounty.
It’s a blatantly unconstitutional law, upending decades of precedent. The law bans abortions after about six weeks of pregnancy — before most women even know they are pregnant. There are no exceptions for rape or incest. The Supreme Court erred in allowing it to take effect and should quickly overturn it.
While the Texas law has enormous implications for abortion rights and women’s health — this is a brazen effort to hollow out the landmark 1973 Roe v. Wade ruling — the Supreme Court’s focus is on the unique and troubling structure of the law, known as Senate Bill 8.
Justices focused on the question from abortion providers as to whether the state can “insulate from federal-court review a law that prohibits the exercise of a constitutional right” by offloading its enforcement to the general public.
In other words, SB 8 has created an unprecedented vigilante system that provides incentives for anyone to sue abortion providers, who then must defend themselves in court at enormous cost. The chilling effects aren’t hypothetical. It’s virtually impossible for a woman to have a legal abortion in Texas.
U.S. Solicitor General Elizabeth Prelogar called the statute “unprecedented, extraordinary, and extraordinarily dangerous for our constitutional structure.”
Prelogar explained the law was designed to “thwart the supremacy of federal law in open defiance of our constitutional structure ... .”
As the Department of Justice argued, under such a structure, no constitutional right is safe.
Kavanaugh appeared particularly concerned about this, emphasizing how the law’s structure could open the door for other states to pass laws that would intrude on constitutionally protected rights: “It could be free speech rights. It could be free-exercise-of-religion rights. It could be Second Amendment rights,” he said.
As if on cue, the Texas Tribune reported Tuesday night that a gun rights group filed a brief with the U.S. Supreme Court in opposition to Texas’ abortion law, fearful that similar statutes could be crafted in other states to target gun ownership.
“This case is about how far a state may go in deterring the exercise of any and all individual constitutional rights,” the gun rights groups asserted.
This alone is ample reason for the Supreme Court to quickly overturn SB 8.
The Supreme Court should never have allowed this law to take effect. While the line of questioning from a majority of justices suggests the Texas law will be overturned, the fate of abortion rights is still precarious.
When justices hear arguments in a restrictive 2018 Mississippi law that seeks to ban abortions at 15 weeks, they should weigh it is as another dangerous measure that not only chips away at women’s rights to abortion — but to all of America’s sacred constitutional protections.
• San Antonio Express-News editorial board via The Associated Press