R&I – FS
Two months to the day after allowing Texas to impose a near-total ban on abortions, the Supreme Court on Monday was openly skeptical of state law SB8 over concerns about its unprecedented enforcement mechanism and what it could mean for other state attempts to limit constitutional rights.
The Texas law, which bans abortions after six weeks of pregnancy, delegates enforcement to everyday citizens — rather than state officials — who can file civil lawsuits against anyone who “aids or abets” an unlawful procedure. Its state sponsors deliberately intended to circumvent federal court review, knowing that such a ban on its face violates constitutionally-protected abortion rights.
Kavanaugh and Justice Amy Coney Barrett, who both voted in September with the five-justice majority allowing SB8 to take effect, voiced particular discomfort with the idea that a state could outsource enforcement of a law to citizens in an attempt to circumvent precedent.
“So the question becomes, should we extend the principle of Ex parte Young to, in essence, close that loophole?” Kavanaugh said. He added that the “whole sweep” of the case suggested such an outcome.
The implications for other constitutional rights and for Supreme Court precedents and authority were of particular concern to Kavanaugh, who could play a decisive role in disposition of SB8.
He cited free speech rights, freedom of religion, and Second Amendment rights, as potentially under threat, referring to an amicus brief filed by a conservative firearms group worried about a decision upholding SB8.
“The theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights,” Kavanaugh said.