2 SCOTUS Justices Open to Challenge to Abortion Law

Brett Kavanaugh appears concerned about loophole
By Liz MacGahan,  Newser Staff
Posted Nov 1, 2021 3:48 PM CDT
2 Conservative Justices Open to Abortion Bill Arguments
This sketch depicts Solicitor General Elizabeth Prelogar, right, presenting an argument before the Supreme Court Monday. Justices seated from left are Brett Kavanaugh, Elena Kagan, Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer, Sonia Sotomayor, Neil Gorsuch and Amy Coney Barrett.   (Dana Verkouteren via AP)

It looks like the Supreme Court will hear a challenge to the Texas’s restrictive new abortion law. The court’s three more liberal justices, Elena Kagan, Stephen Breyer, and Sonia Sotomayor, have already called the law unconstitutional, the Washington Post reports. It went into effect after a 5-4 Supreme Court ruling. In a hearing on Monday, Brett Kavanaugh and Amy Coney Barret appeared to be open to arguments that the law skirted necessary judicial review. There are two questions in front of the court—whether Texas can essentially use enforcement of the law with civil cases brought by the public as a loophole to avoid federal review, and whether the Justice Department has the legal right to challenge the law in court, per NPR. The court isn’t considering whether the law itself is constitutional.

Judd Stone, the Texas solicitor general, made his first appearance before the Supreme Court Monday, saying people challenging the law can’t sue Texas because Texas isn’t enforcing the law. "Federal courts don't enjoin laws, they enjoin officials who enforce the laws," he said, per NBC News, essentially explaining that the law was specifically designed to be impossible to challenge in federal court.

Kavanaugh said allowing abortion providers to challenge the law effectively closed a loophole, the New York Times reports. Kagan had stronger words about laws written to avoid Supreme Court challenges. "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,’" she said. (Read more texas abortion law stories.)

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