The Supreme Court heard two challenges on Monday to the law, which bars most abortions in Texas after about six weeks of pregnancy. The first was brought by abortion providers in Texas, and the second was brought by the Justice Department.
Key Updates: Nov. 1, 2021, 1:24 p.m. ET 55 minutes ago
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Image Capitol Police officers stand guard as abortion rights demonstrators participate in a protest at the Supreme Court. Credit... Tom Brenner for The New York Times After almost three hours of lively arguments, a majority of the justices seemed inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a challenge to a Texas law that has sharply curtailed abortions in the state.
That would represent an important shift from a 5-to-4 ruling in September that allowed the law to go into effect. Justices Brett M. Kavanaugh and Amy Coney Barrett, who were in the majority in that ruling, asked questions suggesting that they thought the novel structure of the Texas law justified allowing the providers to challenge it.
Texas’ solicitor general, Judd Stone, left; an attorney for the Center for Reproductive Rights, Marc Hearron, center; and the federal solicitor general, Elizabeth Prelogar, right. Credit... Federalist Society; Dayna Smith/Center for Reproductive Rights; Shutterstock The United States solicitor general and a lawyer for Texas abortion providers urged the Supreme Court on Monday to block enforcement of the state’s anti-abortion law, while a top lawyer for Texas told the justices they had no power to do so.
Over about three hours of arguments that sometimes delved into highly technical matters, the Supreme Court wrestled with whether it could or should issue an injunction barring Texas state courts from hearing suits filed under the law, known as Senate Bill 8.
Opponents of abortions rights participating in a moment of silence on Monday during a protest at Supreme Court. Credit... Tom Brenner for The New York Times Dozens of protesters gathered in front of the Supreme Court during arguments on Monday, as the justices heard challenges to the Texas law that prohibits abortions after about six weeks of pregnancy.
Demonstrators from around the country gathered at the foot of the steps, most carrying signs supporting abortion rights and marking the sidewalks in chalk as the arguments, which were streamed live, played from speakers.
Justice Sotomayor asked Mitchell why those who sue abortion providers under S.B. 8 are not agents of the state. He argued that there was no agency relationship “because the state is statutorily forbidden” from enforcing the law and therefore cannot act with private citizens who may feel moved to file a private lawsuit.
Justice Kagan also seemed to reject Stone’s assertion that the United States is overstepping its boundaries in bringing its suit. If the Supreme Court upholds S.B. 8, “any state can effectively nullify any federal constitutional law,” she said.
Justice Stephen G. Breyer. Credit... Erin Schaff/The New York Times Justice Stephen G. Breyer, who is 83 and is the senior member of the court’s liberal wing, has written opinions striking down laws that restrict abortions in Nebraska, Texas and Louisiana. In the Nebraska opinion in 2000, Justice Breyer wrote that the debate over abortion involved “virtually irreconcilable points of view.”
“Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it,” he wrote. “Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”
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