November 2, 2021
On Monday, November 1, Supreme Court Justices Elena Kagan and Sonia Sotomayor pushed back against a Texas law that enables private citizens to enforce abortion restrictions. Both ripped the Texas abortion ban for how it would create a model for states to attack other constitutionally protected rights, CNN reports.
Sotomayor grilled Texas Solicitor General Judd Stone on Texas’ argument that Congress could step in and write legislation that would prevent states from passing such laws.
“Can I give you examples where Congress hasn’t?” Sotomayor said, ticking off decisions the Supreme Court has made on gun rights, same-sex marriage, birth control, sodomy, and other contentious issues.
What’s more, in a move that surprised many legal observers, during oral arguments in Whole Woman’s Health v. Jackson (Texas law S.B.8), Justice Brett Kavanaugh expressed concern that Second Amendment rights could also be at risk if the Texas abortion law is allowed to stand, Raw Story reports.
Kavanaugh suggested that new laws could make gun shops liable for millions of dollars if they sell assault-style rifles.
Texas Solicitor General Judd Stone agreed that “all constitutional rights” could be curtailed in the same fashion as abortion rights if Congress allows it.
Kagan interrupted to point out that constitutional rights cannot be blocked by legislation.
“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?” Kagan asked. “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 insisted that state court judges are expected to “faithfully apply the Constitution.”
But Kagan was not convinced.
“Within the state court process, it may be many years from now and with a chilling effect that basically deprives people who want to exercise the [abortion] right from the opportunity to do so,” the justice explained.
The outcome is still touch and go. The court is providing live audio, as it now does in all arguments.
Research contact: @CNN