Justices sound skeptical of the law known as SB 8 , but the damage has already been done and it could get worse.
The right to abortion wasn’t technically at issue today — yet. The justices were supposed to be considering the procedural question of whether abortion providers and the federal government could sue to block Texas’s six-week abortion ban despite the state’s cute attempt to make that impossible by putting enforcement of the law in the hands of self-appointed bounty hunters. The conservative justices asked a lot of questions about whether that structure could be used against constitutional rights they favor (think guns), and the liberals tried to prod that along. It might work to eventually sink the law. All of Texas’s procedural trickery rankled Kagan, but so did what she pointed out to Texas’s solicitor general Judd Stone: “The actual provisions in this law have prevented every woman in Texas exercising a constitutional right as declared by this court.” Stone tried to interrupt, but Kagan pressed on. “That’s not a hypothetical,” she continued. “That’s actual.” “That’s just not true, your honor,” Stone insisted. In fact, he said, the number of abortions in Texas clinics have only been cut in half or so. “I’m sorry, you’re exactly right,” Kagan said with unusual derision. “I should have said, every woman in Texas who has not learned and has not made a decision before six weeks.” This was the strange tension of today. What the court does with these two cases matters enormously for people in Texas who are being denied abortions right now, but depending on how the court rules on a Mississippi abortion case it hears in a month, it may not matter much by next year. If we already know exactly the impact of Texas’s law on patients there, it’s because of the Supreme Court itself. For almost 50 years, the Court has never allowed a state to ban abortion before the fetus is viable, at least 24 weeks into pregnancy, but since September 1, when the court refused to temporarily block the law pending challenges, it casually let Texas do so at around six weeks, a stage when many people don’t even know they’re pregnant.
