Supreme Court Hints That It May Allow Challenge to Texas Abortion Law

The four justices who disagreed in September, Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, did not appear to have changed their minds about the law. And Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch asked questions that suggested they thought the federal courts had no role to play.

Chief Justice Roberts asked a revealing hypothetical question about the law, which allows plaintiffs who sue under it to win damages of at least $ 10,000 if they prevail.

“Suppose the reward is not $ 10,000 but a million dollars,” Chief Justice Roberts said, adding, “Do you think that in that case the coolness about the conduct in question here would be enough to allow the review? from federal court before the end of the state court process? “

Mr. Stone said no. That answer did not seem to satisfy the Chief Justice.

“No one will risk violating the statute,” he said, “because they will be subject to a million dollar lawsuit.”

Stone said Texas law “is limited to much less than that.”

“Yes,” Chief Justice Roberts said, a little irritated. “My question is what we call hypothetical.”

Judge Breyer listed six ways that lawsuits filed under Texas law differed from ordinary ones. “Anyone can sue,” he said. Second, they can sue anywhere in Texas, he added, noting that the state is larger than Rhode Island.

Third, winning once is not a defense in subsequent trials, he said. Fourth, prevailing plaintiffs are entitled to payment of their legal fees, he said, while successful defendants must pay their own attorneys. Fifth, he said, were the $ 10,000 rewards. Sixth, he said, the law was established on the ability of the accused to defend themselves on constitutional grounds.

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