Divided US Supreme Court hears arguments against Texas abortion ban
Washington, Nov 1 (EFE).- The US Supreme Court on Monday heard opening arguments from the Joe Biden administration and from abortion clinics regarding the alleged unconstitutionality of the Texas law that, in practice, bans abortion in that state.
Over three hours, the attorneyS for a coalition of organizations and clinics providing abortion services and the federal government spelled out their arguments in two separate cases concerning the controversial law.
Currently, the country’s highest court has a conservative majority, but the justices are divided regarding this legislation, which bans abortion after the sixth week of pregnancy, when many women do not yet know they are pregnant.
According to the questions they posed and the general impression gleaned by national media outlets, the majority of the nine justices seem inclined to allow the clinics to continue to stand up to the law in the courts.
The law in Texas, a state controlled by the Republicans, went into effect in September and does not include exceptions in cases of incest or rape.
One of the most controversial aspects is that it puts its enforcement into the hands of individuals, and not state officials as is usually the case, since any person may file civil lawsuits against anyone who helps a pregnant woman get an abortion if they prospective plaintiff believes that they have broken the law in question.
In addition, it encourages people to file such lawsuits by offering compensation of up to $10,000 to the plaintiffs if they win the case, a situation that on Monday the Biden administration and the clinics called a “bounty” for implementing the law and a move that would have a “paralyzing” effect on abortions.
The mechanism makes it more complicated to bring the law to court, which – for the federal government and pro-abortion groups – harms the equality of citizens before the law and allegedly makes the measure unconstitutional.
In September, the high court allowed the law to enter into force in a five-to-four ruling.
However, the questions posed on Monday by two of the magistrates who in September opposed blocking the law – conservatives Brett Kavanaugh and Amy Coney Barrett, both of whom were nominated by former President Donald Trump – could indicate that they may be in favor of allowing pro-abortion organizations to continue to pursue the case.
Attorney Marc Hearron, with the Center for Reproductive Rights, one of the groups that has brought the law before the courts, said that the mechanism leaving to individuals the implementation of the Texas law is exceptional and unprecedented.
Saying that this mechanism has transformed the state justice system into a tool that can be used to abolish constitutional rights, Hearron warned that the law could provide a “roadmap” for other states to do away with rights recognized in the US Constitution.
Thus, he asked the high court to issue an order preventing Texas from beginning to accept cases filed against people who have allegedly broken that law.
Abortion was recognized as a constitutionally protected right in 1973 thanks to the Supreme Court ruling in “Roe v. Wade,” in which the magistrates acknowledged that a woman may end a pregnancy within the first six months.
Despite the fact that the issue at hand is abortion, in these two new cases the high court does not have to decide on the legality of abortion but rather on the mechanism created to implement the Texas law and whether the federal government has the right to sue Texas over its abortion ban.
Since the high court will have to rule on whether the mechanism is legal, a good portion of both court sessions dealt with whether “Ex parte Young” is relevant, a 1908 case in which the Supreme Court recognized the right to file lawsuits in federal court against decisions by state officials when the state had acted contrary to national law and the Constitution.
During the hearing, the federal government’s solicitor general, Elizabeth Prelogar, emphasized the exceptional manner in which the law could be brought before the courts.
Saying that there had never been a law such as this one, with no state ever seeking to defy the supremacy of a federal law or to keep the courts out of the equation at the same time, she asserted that the situation also has an urgent additional element since what Texas has done has been to take a constitutional precedent established by the Supreme Court and has passed a law clearly challenging that precedent.
Prelogar said that Texas had designed a law in a “deliberate attempt” to prevent federal courts from doing anything against a constitutional violation, adding that no state had ever prepared or implemented a plan like this.
In both court sessions, Texas solicitor general Judd Stone defended the state’s stance, saying that there was no legal basis for the federal government or the clinics to sue the state.