Kavanaugh appears to side with abortion providers against Texas law over constitutional concerns

When former President Donald Trump nominated Justice Brett Kavanaugh to the Supreme Court, abortion advocates wailed and moaned that the new justice could be the key vote to limit or completely abolish the prior court precedence establishing the right to obtain the life-ending procedures.

That may not be the case, though, or at least not yet. In a stunning development Monday, Kavanaugh appeared to side with abortion providers challenging the strict new anti-abortion law in Texas known as S.B.8, Politico reported.

It must be noted, however, that Justice Kavanaugh did not express support for abortions, per se. Rather, he expressed concern over how the unique enforcement mechanism of the Texas law could be adopted by other states and applied to other enumerated constitutional rights, such as the Second Amendment-protected right to keep and bear arms.

One unique issue

Oral arguments were held Monday with regard to a pair of technical and procedural challenges posed against the Texas law, which effectively bans most abortions after a fetal heartbeat is detected, usually around six weeks of pregnancy. That law is not actually enforced by the state, but instead by private citizens empowered to file civil suits against those who perform or assist in providing abortions.

According to SCOTUSblog, the two challenges — one posed by abortion providers in the state, the other by the federal government — were focused less on the issue of abortion or the constitutionality of the ban and more on the enforcement mechanism and who had the right to sue, as well as who should be sued, to block the law from being enforced.

Justice Kavanaugh first expressed his skepticism over Texas law by noting how it seemingly sidestepped prior precedent allowing state officials to be challenged over purportedly unconstitutional laws in that it created a “loophole that’s been exploited here, which is the private suits … enforced by state court clerks or judges.”

He also signaled his concern over whether the law could be applied retroactively with regard to abortions that might take place during a temporary window in which the law was blocked, which in his view would have a “chilling effect” on acts that, at the time they were committed, would be perfectly legal.

Possible 2A concerns

The crux of Justice Kavanaugh’s apparent opposition to the Texas anti-abortion law, according to The Hill, was how it might be adapted and applied by other states “for suppression of other constitutional rights.”

“It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights if this position is accepted here,” Kavanaugh said.

Pointing to a surprising amicus brief filed in support of the abortion providers by a gun rights organization, he added, “The theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights.”

Threat to other rights

To be sure, it was nothing short of stunning for people on both the left and right to see Justice Kavanaugh seemingly side with abortion providers against the new Texas law strictly limiting abortions — a law that, if written differently under normal standards, he might be inclined to support.

That said, it was abundantly clear from his questions and comments that it was the risk posed to other constitutional rights, should the novel enforcement mechanism devised by Texas be allowed to stand, that compelled Kavanaugh’s unexpected alignment in this case.

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