The depressing subtext of Brett Kavanaugh’s Texas abortion skepticism – By Mary Ziegler (NBC News) / Nov 3 2021
On Monday, the Supreme Court heard oral arguments in two cases tied to Senate Bill 8, a Texas abortion law that bans abortion at six weeks, before many people know they are pregnant. Things did not go well for Texas. The arguments were not focused on abortion itself — the justices had actually declined Texas’ request to reconsider Roe v. Wade in that case — but on the unique enforcement mechanism that Texas had chosen: prohibiting state officials from enforcing the law while allowing any private citizen to sue an abortion doctor or person who “aids or abets” an abortion patient.
In the next month, the court will likely issue a ruling on two questions about Texas’ end-run around America’s constitutional right to abortion. The Justice Department, which had never previously challenged an abortion restriction, will learn whether it can bring suits of this kind. And abortion providers questioning the Texas bill will see if they can sue — or if states can use S.B. 8 as a blueprint for nullifying other constitutional rights.
Oral arguments this week certainly didn’t sound good for Texas, with several conservative justices, including Brett Kavanaugh, sounding skeptical. This could amount to something of a pyrrhic victory for abortion-rights advocates, however. The court’s conservative majority may not like it when conservative states try to nullify abortion rights, but that doesn’t mean the conservative justices aren’t ready to take down Roe themselves. And they have a much better case coming up to do just that.
