Multiples justices on the US Supreme Court have signalled scepticism about the novel enforcement mechanism at the heart of Texas’s new anti-abortion law, which has placed some of the most stringent restrictions on the procedure in the country.
America’s highest court, which is split 6-3 between conservative and liberal justices, on Monday heard oral arguments in two separate cases filed by the US justice department and abortion providers against Texas. The Supreme Court had left the law in effect while fast-tracking its review.
Some conservative justices appeared to be weighing up some aspects of the new law, which prohibits abortion after roughly six weeks of pregnancy, before many women know they are pregnant, without exceptions for instances of rape or incest.
Brett Kavanaugh, who was nominated by former president Donald Trump, said Texas had “exploited” a legal “loophole”, and questioned whether that loophole should be closed.
Amy Coney Barrett, another conservative justice appointed by Trump, questioned whether under the Texas law, “the constitutional defence” of abortion rights “can be fully aired”.
Liberal justices were strongly critical of the new law. Elena Kagan, who was appointed by Barack Obama, said sarcastically that “some geniuses” had crafted the law to challenge legal precedent allowing judicial review of unconstitutional state laws.
Sonia Sotomayor, another liberal justice appointed by Obama, said Texas had “chosen to deputise an entire swath of citizenry” to enforce the law on its behalf.
The Supreme Court previously declined to block the Texas law twice, including shortly after it took effect on September 1.
The legal fight around the state’s new measure kicked off after the Department of Justice in September sued Texas, arguing the statute was unconstitutional and that it “deputises all private citizens without any showing of personal connection or injury to serve as bounty hunters”.
It secured a temporary victory when a federal district court in Texas suspended the law, but lost the next round when a federal appeals court lifted that suspension. The DoJ has asked the Supreme Court to set aside the appeals court’s decision.
The case has brought to head fraught debates over reproductive rights in the US, with the Biden administration and some legal experts raising concerns over other states potentially emulating the Texas law’s design.
Next month the Supreme Court will also hear arguments in a case reviewing a ban on most abortions after 15 weeks in the Republican-led state of Mississippi. Together, the Mississippi and Texas cases mark the biggest challenge to Roe vs Wade, the Supreme Court decision that paved the way for legal abortion nationwide, since it was decided in 1973.
In documents filed last month, Texas said that if the Supreme Court were to debate the merits of its new law, it should overturn Roe vs Wade and Planned Parenthood vs Casey, a 1992 Supreme Court decision that upheld Roe’s recognition of a constitutional right to abortion.
The Center for Reproductive Rights, which is challenging the Texas law with partners including Planned Parenthood Federation of America and the American Civil Liberties Union, said in a court filing last month: “If Texas gets away with this ploy, the constitutional right to abortion will be the first but certainly not the last target of states unwilling to accept federal law with which they disagree.”
The Texas statute allows individuals to report people to the authorities for helping women have abortions, and to potentially receive at least a $10,000 payment for doing so.
Legal experts have described the structure of the law as an effort to sidestep Supreme Court decisions that prohibit states from outlawing abortions before the foetus reaches “viability”.
The DoJ said in documents filed last month that “no state has ever tried to subvert the constitution through this sort of brazen procedural ploy”, adding that it denied women in Texas their constitutional rights.
Texas responded in court filings that “neither the federal government nor abortion providers are entitled to demand Texas write its laws to permit them to be challenged in a pre-enforcement action in federal court”.
Anti-abortion advocates are pressing legal challenges to abortion rights in the US as the Supreme Court has grown more conservative after appointments including Barrett, who was nominated by Trump to replace the late liberal justice Ruth Bader Ginsburg and was championed by activists seeking to undo Roe.
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