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Supreme Court weighs arguments in Texas' controversial law that severely limits abortion access

Supreme Court building
Posted at 10:31 AM, Nov 01, 2021

A majority of Supreme Court justices on Monday seemed open to allowing abortion providers in Texas to challenge a controversial law currently in place that bans the procedure in the state after just six weeks of pregnancy.

However, it's unclear when the high court could hand down a decision that would allow such a lawsuit to move forward, or if such a ruling would suspend the law while courts consider the challenge.

According to CNN and The Associated Press, Justices Brett Kavanaugh and Amy Coney Barrett — both of whom were appointed by President Donald Trump — raised questions about the structure of the Texas law during a three-hour hearing on Monday.

In September, both Barrett and Kavanaugh sided with the four other conservative justices in allowing the law, SB8, to go into effect. However, on Monday, they raised key questions as to how the law is enforced.

The law bans abortions after a fetal heartbeat is detected, which usually occurs at about six weeks, or before many women know they are pregnant. When the law went into effect earlier this year, it shut down practically all abortion services in the state.

But the law has an unusual structure that has made it difficult to challenge. It specifically outlaws the state executive branch from enforcing it. Instead, it calls on private citizens to file lawsuits seeking $10,000 in damages from anyone who aids or abets a person from seeking an illegal abortion.

Lawyers representing Texas say that because the state is not enforcing the law, a lawsuit cannot stop it from being enforced.

Kavanaugh on Monday called the law's structure a "loophole."

"There's a loophole that's been exploited here, or used here," Kavanaugh said, according to The Associated Press. The "loophole" to which he was referring was set up in a 1908 Supreme Court case, which according to The New York Times, set precedence in how the government could go about blocking potentially unconstitutional legislation.

Kavanaugh's and Barrett's questioning implied that a majority of justices were leaning toward granting abortion providers the chance to challenge the law.

However, in a separate challenge brought by the Department of Justice, CNN reports that a majority of conservative justices expressed reservations about how broad the Biden Administration's argument was in seeking a challenge.

While the legality of abortion was not at issue during Monday's hearing, the Supreme Court's eventual ruling on the case could have massive implications for abortion access in Texas and how other conservative-leaning states could seek to limit abortions in the future.