In the wake of hours of careful deliberation on Monday, objections raised by associate Justices Brett Kavanaugh and Amy Coney Barrett mean that the Supreme Court is now well placed to allow abortion clinics and other medical institutions, to pursue judicial challenges to Texas’ controversial abortion law.
The law, which was tactfully worded to guard against such inquiries, has apparently been deemed by Kavanaugh, Barrett and the four Justices who had previously detested its enactment back in September, to be unworthy of the extraordinary protection provided by the problematic language of the bill.
However, even when the presupposed ruling is finalized, it will not expressly grant the Supreme Court the power to overturn the law, instead, it will merely set the confines within which the fight to do so will take place, and any potential challengers will still have to climb the judicial latter if they hope to achieve their goal. This development is a rejection of the shaky underpinning upon which the law rests, namely the language which negates any legal challenge to the law or its premises because it does not allow for enforcement by state officials, instead imploring private citizens to sue anyone perceived to be aiding or abetting the new crime.
The bill itself, which became law Sept. 1st, has been the subject of fierce scrutiny of late, largely because of its restrictive nature, which makes it illegal under Texas law to deliver or recieve an abortion after six weeks of pregnancy, with no exemptions allowed for cases of rape or incest. Opponents argue that these limits run contrary to the precedent set by two landmark Supreme Court decisions of the last century, Roe v. Wade in 1973 and Casy v. Planned Parenthood in 1992, both of which established that restrictions on the legality of abortion could not be imposed before 23 weeks of pregnancy, or around the time when the fetus is able to survive outside the mothers uterus. This means that the law is likely to be struck down once the ruling is official, and clinics and medical providers mount their own challenges to the constitutionality of the law.
Although it wasn’t just abortion clinics who sought to strike down the restrictive policy. President Biden asked last month that the Supreme Court strike down the law, saying as well that his administration would seek to mount a defence against these measures. There is little doubt that Mr. Biden was sincere in his words, but it is looking more than likely that it will be the Texas abortion clinics that find success in this pursuit first.
The partisan foundations of this issue, especially when as deeply personal to both parties, are beginning to lead to tense debate now, as conservatives will disdain this sudden change of opinion from two of the courts most conservative justices. But it remains to be seen just how this story plays out and who will be left feeling hard done by.