The Washington PostDemocracy Dies in Darkness

Biden administration asserts 'no constitutional right is safe’ if Texas abortion law allowed to stand

Justice Elena Kagan on Nov. 1 argued that there is already evidence that Texas abortion law S.B. 8 has had a "chilling effect" on abortion providers. (Video: The Washington Post)
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The Supreme Court on Monday heard two challenges to Texas’s new abortion law, the most restrictive in the nation, that abortion providers and the Justice Department argue conflicts with a constitutional right established nearly 50 years ago in the landmark Roe v. Wade case.

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Elizabeth B. Prelogar, the U.S. solicitor general, argued that “no constitutional right is safe” if justices allow the Texas law to stand. But conservative judges sharply questioned Prelogar about the rationale for the administration’s request to block the law.

Judd E. Stone II, the Texas solicitor general, argued that the federal government and abortion providers do not have legal grounds to sue the state in federal court, a focus of Monday’s hearing. Earlier, Marc A. Hearron, an attorney for the providers, argued that the Texas law has created a “chilling effect” by providing “bounties” to private citizens to enforce it.

Here’s what to know:

  • The challengers say the court must intervene to stop an unconstitutional law designed to avoid judicial scrutiny. The Texas law is enforced by private citizens, who are empowered to sue anyone who helps a woman get an abortion.
  • The law has effectively halted access to abortion in the nation’s second-largest state and sent Texas patients across state lines to terminate their pregnancies.
  • The cases Monday center on legal procedural questions. Next month, the justices will review a Mississippi law that bans most abortions after 15 weeks. In that case, abortion opponents are seeking to overturn Roe and Planned Parenthood v. Casey, which reaffirmed the right to abortion in 1992.
  • A dozen states have passed laws similar to the six-week ban in Texas, which prohibits the procedure after cardiac activity is detected in the embryo. Federal judges preemptively blocked state officials from enforcing the other laws.