Amy Barrett And Brett Kavanaugh Signal Skepticism On Texas Abortion Law

( Texas didn’t get the news it was hoping for this week, when two conservative Supreme Court justices seemed to indicate they were ready to allow abortion providers to sue the state in federal court to block enforcement of a very strict ban on abortions.

On Monday, Justices Brett Kavanaugh and Amy Coney Barrett both indicated they believed Texas went too far passing their law. First, they said the state put a limit on abortions that was unconstitutional. Then, they said the state went too far when it prevented owners of clinics and doctors from challenging the law in court.

For one, Kavanaugh said he believed Texas was exploiting a “loophole” in law that bars people from taking a case to federal court, even in cases where a state law that’s unconstitutional targets them.

He cited a 1908 landmark Supreme Court decision that said any business or person who was targeted by a law that was unconstitutional could get relief from a federal judge by naming an official in the state who would be responsible for enforcing that law.

Texas got around that ruling by limiting it to private lawsuits that would be brought against abortion clinics and doctors.

The lawyers for the state argued that any doctor providing abortions could indeed go to state court to defend themselves.

Barrett, though, said that wasn’t a solution. She referred to the fact that Texas’ law says hundreds of people could sue a doctor over one abortion, but judges in the state could only rule on one lawsuit at a time.

She said:

“You can’t get a global relief,” even if the doctor were to win in state court. “The statute can still be enforced against you.”

In response, one of the lawyers argued that judges in Texas, and not officials with the state, were responsible for enforcing the abortion ban.

Kavanaugh didn’t back down from that argument, though. He was joined by Chief Justice John Roberts in citing a 1948 Supreme Court decision in Shelley vs. Kraemer, which struck down a law because state judges were the ones who “enforced” the restrictions.

That case had to do with covenants on deeds that were racially restrictive, and prevented Jews or Black Americans from purchasing a home. The state argued they should be allowed because they were private agreements and not a state law.

Kavanaugh said that the same principles used in the 1948 ruling should be applied to Texas’ abortion law.

There were nearly three hours of oral arguments held on the case on Monday, and it seemed as though six of the justices were ready to rule against Texas, allowing abortion providers to proceed with lawsuits in federal court that seek to block Texas’ law from being enforced.

Having three conservative justices rule in favor of abortion providers in this case doesn’t necessarily mean they would be ready to strike down restrictive abortion laws in other states, though.

It’s still possible that in future cases, the Supreme Court could strike down parts of Roe vs. Wade, or make alterations to it.