The Supreme Court heard arguments today regarding the Texas Heartbeat Act cases. According to the Washington Post, a majority of Supreme Court justices seemed willing to allow a challenge by abortion providers to the Texas law, which bans most abortions after six weeks of pregnancy and allows enforcement by private citizens.
Based on the Post’s reporting of the questioning by Justices, it does seem that the Court will permit that challenge. In fact, it looks like the Justices will do so by a 6-3 majority.
That’s also Ed Whelan’s view. He expresses his dismay here.
Today’s hearing also involved the federal government’s challenge, as the free-lancing avenger of its view of the Constitution, to the Texas law. According to the Post, the Justices didn’t seem eager to confront the issues raised by this example of overreach (my term).
The six Justices who seemed willing to allow the abortionists challenge to proceed include the three leftists — Justices Breyer, Sotomayor, and Kagan — as well Chief Justice Roberts. That potential majority also includes two of the three Donald Trump appointees — Justices Kavanaugh and Barrett.
A 6-3 vote along these lines would cause many to wonder whether President Trump choked (to use his favorite word in this context) when he nominated Kavanaugh and Barrett. In fact, some are already wondering this in the case of Kavanaugh.
However, it’s important to note that the question today is a procedural one. A holding that the challenge to the Texas law can go forward wouldn’t mean that a majority will find that law unconstitutional.
It’s possible that, on the merits, the Court will, in the words of the Post, “revisit its abortion jurisprudence.” However, my guess, for what it’s worth, is that the Court will not overturn Roe v. Wade.
Who has the better of the argument on the procedural issue argued today? I’ll reserve my judgment until I read the opinions, assuming I’m up to that chore.