The U.S. Supreme Court heard challenges Monday to a Texas law that imposes a near total ban on abortion after six weeks. 

The Republican-backed Texas law bars abortions once cardiac activity has been detected in an embryo, which typically happens at six weeks – a point when some women are not yet aware they are pregnant.

The law also allows members of the public to sue people who may have facilitated an abortion after six weeks, taking enforcement out of the hands of state officials. 

The justices heard separate challenges to the law from President Joe Biden’s administration and from abortion providers. 

In their questioning of lawyers appearing before the court Monday, the justices suggested the law’s atypical enforcement structure could be problematic. 

Justice Amy Coney Barrett asked whether defendants who are sued under the law could ever get a “full airing” of the constitutional claims on the right to an abortion. The law allows defendants to bring up such claims only after they have been sued. 

Barrett was one of five conservative justices who allowed the Texas law to take effect while legal challenges to it played out in court.

Brett Kavanaugh, another of the justices who let the law take effect, also raised potential problems with its unusual structure. He said the law “exploited” a “loophole” in court precedent in how it is enforced with lawsuits. He raised the possibility that the court could “close that loophole.” 

Liberal Justice Elena Kagan said the law was written by “some geniuses” to evade legal principles. 

In the cases brought before the Supreme Court Monday, the justices are not directly considering the constitutionality of the right to an abortion.

Abortion rights, however, were part of arguments made to the court by lawyers challenging the Texas law.

Solicitor General Elizabeth Prelogar said the Texas law “clearly violates” Supreme Court precedents, referring to Roe v. Wade, the decades-old ruling that gives women the right to an abortion in most circumstances. The 1973 Supreme Court decision recognizes a constitutional right to an abortion before a fetus is viable, typically around 24 weeks of pregnancy.

The high court is being closely watched on issues of abortion after it allowed the restrictive Texas law to take effect in September. 

The court became more conservative under President Donald Trump, who appointed three justices to the nine-seat bench. Conservatives now hold a 6-3 majority.

The court scheduled oral arguments for December 1 to hear a case concerning a Mississippi state law that bans abortions after 15 weeks of pregnancy. That case directly asks justices to overturn Roe v. Wade. 

A poll released by Monmouth University in September found that 62% of Americans believe abortion should either always be legal or be legal with some limitations. Twenty-four percent said it should be illegal except in rare circumstances such as rape, while 11% said it should always be illegal.

Some information in this report came from the Associated Press and Reuters. 

 

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