Liberal Justices Can’t Help Showing Their Disdain For Texas Abortion Ban

Justices Sotomayor and Kagan. Getty Images.
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November 1, 2021 3:36 p.m.

The liberal women Supreme Court justices let the snark fly Monday as they picked apart the six-week abortion ban out of Texas.  

“We would be inviting States, all 50 of them, with respect to their unpreferred constitutional rights, to try to nullify the law that this Court has laid down,” Justice Elena Kagan said. “That was something that, until this law came along, no state dreamed of doing.”

“Essentially, we would be like ‘you’re open for business. There’s nothing the Supreme Court can do about it,’” she continued. “Guns, same sex marriage, religious rights — whatever you don’t like, go ahead.” 

The Supreme Court heard oral arguments Monday in two lawsuits over the Texas abortion ban: one from abortion providers suing various Texas state officials, and one from the Department of Justice suing the state of Texas. 

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The law, S.B. 8, says that every person who “aids and abets” a woman in obtaining a post-six week abortion is criminally liable, and deputizes individuals to sue them. If the suit is successful, the plaintiff gets at least $10,000 and attorneys’ fees recouped; the defendants get nothing if the suit fails. 

“The fact that, after oh these many years, some geniuses came up with a way to evade …  the even broader principle that states are not to nullify federal constitutional rights and to say ‘well we’ve never seen this before so we can’t do anything about it,’” Kagan paused. “I guess I just don’t understand the argument.” 

As the justices poked the lawyers’ arguments on behalf of Texas and its state officials, they led with the effect the law is having on women on the ground. 

“We’ve had a little experiment here and we’ve seen what the chilling effect is,” Kagan said of the law and its stiff monetary penalties. “Usually in these chilling effect cases we’re kind of guessing … here we’re not guessing, we know exactly what has happened as a result of this law: it has chilled everybody on the ground.” 

At one point, Sonia Sotomayor predicated a question on the assumption that the Court would find that the law was intended to dissuade women from exercising their constitutional right to an abortion  — and added a sharp warning for Texas Solicitor General Judd Stone.

“You can challenge the assumption,” she added in a biting parenthetical, “but you’ll waste your time.”

Kagan again jumped in when Stone snarkily inflated a previously used hypothetical about an even larger than $10,000 bounty to a “$5 billion sanction and by the way, court is on the moon.” 

“The actual provisions in this law have prevented every woman in Texas from exercising a constitutional right as declared by this Court,” she interrupted. “That’s not hypothetical, that’s an actual.”

Stone protested, saying that abortion is not completely outlawed in the state. (In reality, many women are not even aware that they’re pregnant at that point which Texas outlaws the procedure).

“You’re exactly right,” Kagan responded tartly. “I should have said every woman in Texas who has not learned and has not made a decision before six weeks.”

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