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, reported The New York Times.
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.
The law, which bans most abortions after about six weeks and includes no
exceptions for pregnancies resulting from rape or incest, has caused clinics in
the state to turn away many women seeking the procedure.
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