The weakness in arguments before the court from Texas is in the same thing that Texas used to get around Roe vs Wade….
The Texas law allows private individuals to DIRECTLY go after abortion providers….
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.
Justice Kavanaugh said that might amount to closing a loophole. Justice Barrett said the law was structured to prevent the providers from presenting a “full constitutional defense.”
Such a decision would not conclude the case or address whether the law itself is constitutional. Instead, it would return the case to lower courts for further proceedings. It was, moreover, not clear whether the court would temporarily block the law while the case moved forward if it allowed either the providers or the administration to sue.
The law, which went into effect on Sept. 1, was drafted to evade review in federal court, a goal the state has so far achieved….
Monday’s case marked the second time S.B. 8 has reached the justices. In a previous 5-4 ruling, which broke largely along familiar ideological lines, the conservative-majority court denied abortion providers’ emergency request to block the law.
Since that Sept. 1 ruling — which did not address the measure’s constitutionality — litigation over the law, known as S.B. 8, has percolated back up to the Supreme Court, while abortions in Texas have been curtailed.
The question of whether federal court is a proper forum to hear S.B. 8 challenges is complicated by the law’s unique legislative design, which critics have likened to a “bounty” system.
S.B. 8 authorizes citizens to file private lawsuits against those who perform, aid or abet an abortion after fetal cardiac activity is detected, typically around six weeks of pregnancy — before most women know they are pregnant. Successful suits under S.B. 8, which contains no exceptions for rape or incest, fetch at least $10,000….
The justice’s got a strong beat down from other lawyers in how the handled this case in the first place….