Supreme Court questions controversial Texas abortion law

If the Supreme Court doesn't do anything about that, she said, it would be inviting states to try to flout precedent: “Guns. Same-sex marriage. Religious rights. Whatever you don't like: go ahead,” she said. Kagan, who disagreed with her colleagues' decision to let the law take effect, said Texas' law has prevented women in Texas “from exercising a constitutional right.”

Kavanaugh also raised concerns about laws that might affect other constitutional rights.

The Texas law has been in effect since September when the Supreme Court declined to intervene, except for a 48-hour period in early October when it was blocked by a lower court. The high court got involved again less than two weeks ago, moving at extraordinary speed. The court offered no explanation for its decision to hear the cases so quickly.

If the court allows the providers to continue their lawsuit, it would still take a separate order from the justices or a lower court to put the law on hold.

Amy Hagstrom Miller, chief executive of Whole Woman's Health, said her four clinics would resume abortion services if they get a favorable court order.

The Texas ban, signed into law by Gov. Greg Abbott in May, prohibits abortion after cardiac activity is detected in a fetus, usually around six weeks and before some women know they are pregnant.

The law makes exceptions for medical emergencies but not for rape or incest.

A study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% after the law took effect in September, compared to the same month in 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Evaluation Project.

At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.

Rather than have state officials enforce the law, Texas deputizes private citizens to sue anyone who performs or aids and abets an abortion. If someone bringing suit is successful, they are entitled to at least $10,000. Women who obtain abortions can’t be sued under the law.

During arguments Monday, Roberts at one point asked whether the law could be challenged if Texas had made the entitlement much higher, $1 million. Texas' lawyer told him no.

The structure of the law threatens abortion providers with huge financial penalties if they violate it. Clinics throughout the state have stopped performing abortions once cardiac activity is found.

The result, both the providers and the Biden administration said, is that women who are financially able have traveled to other states and those without the means must either continue their pregnancies against their will or find other, potentially dangerous ways to end them.

Stone and Jonathan Mitchell, an architect of the law who also argued Monday, defended the law and its unusual structure. They said both the providers and the Justice Department lack the right to go into federal court, and should be asking Congress, not the justices, to expand court access.