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Elena Kagan schools Texas lawyer on the meaning of constitutional rights

Justice Elena Kagan
Justice Elena KaganPhoto: Supreme Court photo

Supreme Court Justice Elena Kagan schooled Texas Solicitor General Judd Stone II on what constitutional rights are as the Court heard arguments about the state’s new anti-abortion law.

Texas’s S.B. 8 went into effect last month, effectively banning abortion after the sixth week of pregnancy. The vast majority of abortions happen after the sixth week because most people don’t know they’re pregnant before then.

Related: U.S. Supreme Court Justice Elena Kagan officiates her first same-sex wedding

The law got attention for its unusual enforcement mechanism, allowing private citizens to sue for a bounty of $10,000 if they believe a post-sixth week abortion happened instead of just criminalizing abortions. Anyone who helps a pregnant person get an abortion – even Uber drivers – can get sued in Texas now.

Today the Court heard oral arguments in Whole Woman’s Health v. Jackson, a lawsuit challenging the law. Stone, defending the law, said that Texas hasn’t banned abortion per se, it just allowed private citizens to sue.

“Federal courts don’t enjoin laws, they enjoin officials who enforce the laws,” he argued, saying that the Supreme Court can’t stop the law.

Surprisingly, conservative Justice Brett Kavanaugh took issue with that, calling it a “loophole” to constitutional rights that could apply to any right, including Second Amendment rights. He asked what if a state didn’t ban guns but just passed a law that “everyone who sells an AR-15 is liable for a million dollars to any citizen.”

Stone said that would be OK since his argument “does not turn on the nature of the right.” He said that the only way to stop laws like S.B. 8 would be for Congress to pass a law banning states from passing them, but the Supreme Court can’t do anything.

Kagan wasn’t going to let that go unchallenged.

“Your answer to Justice Kavanaugh, which is go ask Congress, I mean, isn’t the point of a right that you don’t have to ask Congress?” she said. “Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?”

Stone said that the Supreme Court has to assume that Texas state court judges will “faithfully apply the Constitution,” which means that, under his argument, the Supreme Court should assume that Texas state courts will apply Roe v. Wade correctly as they hear suits brought under S.B. 8, even though they contradict each other. Following that logic, if a Texas state court doesn’t apply Roe correctly and awards someone a $10,000 bounty for suing over an otherwise legal abortion, the remedy is to appeal, possibly in federal court, and only then can the Supreme Court decide on the law.

Kagan didn’t like that argument, saying that could be “many years from now” and cause “a chilling effect that basically deprives people who want to exercise the right from the opportunity to do so in the maybe long-term interim.”

The arguments the Court heard today weren’t about whether the law itself is constitutional; instead, they’re about whether the lawsuit can go forward.

Texas lawmakers wrote bounties into the abortion ban and allowed anyone except for state officials to sue for them in order to keep the Supreme Court from overturning it. Usually, federal courts rule against a state official who is in charge of enforcing a law in order to overturn it, but here no state official is in charge of enforcing it.

This argument worked enough to stop the court from issuing an injunction in September, which could have prevented the law from going into effect while the court process was happening even though the abortion ban clearly violates Roe v. Wade’s protection of abortion before a fetus is viable or 24 weeks.

Supporters of abortion choice in Whole Woman’s Health are arguing that state judges and court clerks can be sued since they’re effectively in charge of enforcing this law.

“The combined effect is to transform the state courts from a forum for the protection of rights, into a mechanism for nullifying them,” argued Marc Hearron of the Center for Constitutional Rights.

Stone, though, said that courts and clerks can’t be sued over this law, which is why Kavanaugh asked if this “loophole” can be used for any other right.

Kavanaugh also brought up marriage equality, saying that a state could pass a law that says “anyone who declines to provide a good or service for use in a same-sex marriage, a million dollars, is sued by anyone in the state.”

Kavanaugh’s example shows his opposition to LGBTQ equality. The Supreme Court has never found that the Constitution protects a Christian business owner’s “right” to refuse to serve LGBTQ customers. In fact, many states and municipalities have laws similar to what he stated as a hypothetical: civil rights laws that ban businesses from selling a product to only one group of people but not another if they’re part of a protected class.

Currently, Christian conservative organizations are trying to get a case to the Supreme Court to create such a right. Earlier this year, lawyers for Arlene’s Flowers in Washington state, asked the Supreme Court to overturn a judgment against them after they refused to sell flower arrangements to a gay couple.

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