Supreme Court seems skeptical of Texas' 6-week abortion ban, with Justice Brett Kavanaugh saying 'there's a loophole that's been exploited'

• The Supreme Court seems open to allowing abortion providers challenge Texas' restrictive law.
• So far, the abortion ban has withstood legal challenges because of its unique enforcement mechanism.

A majority of the Supreme Court justices on Monday seemed open to letting abortion providers challenge a highly controversial Texas law that restricts abortions after six weeks of pregnancy.

The justices heard nearly three hours of arguments in two separate challenges to the Texas law, brought by abortion providers and the Biden administration's Department of Justice, respectively. The groups claim the law directly violates a women's constitutional right to an abortion established nearly 50 years ago in the landmark Supreme Court decision, Roe v. Wade.

But the justices are not reviewing abortion rights in either case. Instead, they're considering the law's unique enforcement mechanism, which has been designed to avoid judicial review.

The law has so far withstood legal challenges because it is enforced by private citizens, not public officials. That means an ordinary person can sue anyone who "aids and abets" someone getting an abortion in Texas beyond the six-week mark of pregnancy. Successful plaintiffs may be rewarded with at least $10,000, in addition to legal fees.

The court will examine technical questions of whether abortion providers and the DOJ can sue in federal court to block the Texas law.

Abortion providers criticized the Texas law's design, saying that letting it stand could create an opening for states to pass laws that restrict other rights in the future.

"The issues before this court are far more sweeping," Marc Hearron, a lawyer for the Center for Reproductive Rights representing abortion providers, said on Monday. "To allow the Texas scheme to stand would provide a roadmap for other states to abrogate any decision of this court with which they disagree. At issue here is nothing less than the supremacy of federal law."

'There's a loophole that's been exploited'

US Solicitor General Elizabeth Prelogar also elevated that point in her arguments, urging the high court to consider the "startling implications" of Texas' position.

If Texas can hand off its enforcement authority to the general public, then "no constitutional right is safe," Prelogar told the court. "No constitutional decision from this court is safe. That would be an intolerable state of affairs and it cannot be the law," she added.

The court's three liberal justices appeared to embrace the argument, with Justice Elena Kagan saying states could "nullify the law" the Supreme Court has laid down.

"You're open for business," Kagan told Texas' solicitor general, Judd Stone. "There is nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don't like, go ahead."

Stone disagreed, responding that "the state of Texas has not nullified anything."

Some conservatives on the bench, including former President Donald Trump's appointees Amy Coney Barrett and Brett Kavanaugh, also seemed skeptical of the law's design.

"It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights if this position is accepted here," Kavanaugh said.

"There's a loophole that's been exploited here or used here" and the question is should the court "close that loophole," he added.

Chief Justice John Roberts also pressed Stone on the matter with a hypothetical scenario, in which successful legal challenges would win a million dollars rather than $10,000.

"It's not a question of the federal courts being more open. It's a question of anybody having the capacity or ability to go to the federal court because nobody is going to risk violating the statute because they'll be subject to suit for a million dollars," Roberts said.

In the federal government's case, however, the conservative justices questioned the DOJ's standing, with Kavanaugh calling its lawsuit against Texas "irregular and unusual."

Although it's unclear when the justices will hand down their decision in the cases, the arguments on Monday raised the possibility of some of the court's conservatives siding with abortion providers.

The six-week abortion ban

Since the law took effect on September 1, abortion access has been effectively limited in Texas - the second largest state in the US. The law has forced patients to travel out of state to seek abortions past six weeks of pregnancy.

Proponents of the law say that abortions are prohibited once fetal cardiac activity can be detected. But it has no exceptions for cases of rape or incest and bans abortions at a time before many people know they are pregnant.

The arguments on Monday come two months after the Supreme Court allowed the law to take effect. In a narrow 5-4 vote on September 2, the court's majority rejected an emergency request from abortion providers to block the law, writing that the decision was technical and not based on the law's constitutionality.

Roberts, a conservative, joined the court's three liberals in dissent.

"The statutory scheme before the court is not only unusual, but unprecedented," he wrote at the time. "The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime."

The high court's decision last month to consider both challenges from abortion providers and the DOJ marked a new development in the legal battle.

Separately, the Supreme Court will consider the constitutionality of abortion as it relates to a Mississippi law, which bans the procedure after 15 weeks of pregnancy. Arguments on that case, Dobbs v. Jackson Women's Health Organization, are slated for December 1.