A number of justices signaled reservations about the law and its potential broader implications.
Opponents of abortion rallied outside the Supreme Court in support of S.B. 8, the Texas law that bans abortion after doctors can detect a fetal heartbeat. That’s at about six weeks of pregnancy, before most women know they’re pregnant.
The Supreme Court has long said state officials cannot ban abortion that early in a pregnancy. So the Texas legislature handed off enforcement to private individuals, allowing anyone to sue any doctor who performs an abortion or anybody who helps out.
The state says abortion providers should have to wait until they’re sued before challenging the law. But Texas ran into a wave of skepticism from even some of the court’s conservatives, including Amy Coney Barrett and Brett Kavanaugh, who earlier voted against temporary blocking S.B. 8.
Justice Barrett said she doubted that making the challengers wait to be sued would give them a fair shot at defending their rights: “I’m wondering if, in a defensive posture in state court, the constitutional defense can be fully aired.”
And some members of the court worried that other states could copy the Texas model to limit a host of constitutional rights:
Justice Elena Kagan said, “We would be like, ‘We’re open for business. There’s nothing the Supreme Court can do about it.’ Gun rights, same-sex marriage, religious rights, whatever you don’t like, go ahead.”
Justice Kavanaugh said a state could allow private lawsuits against guns it wants to ban: “… Say everyone who sells an AR-15 is liable for a million dollars to any citizen.”
Monday’s case was not about abortion itself. The court will take that up in one month when it hears Mississippi’s challenge to Roe v. Wade.