Supreme Court Justices including Elena Kagan went after an infamous ban on many abortions in Texas during hours of hearings on Monday. At one point, Kagan directly laid out how Texas Solicitor General Judd Stone — who was there arguing on behalf of the Texas state authorities who put the abortion ban in place — seemed to miss the “point” of Constitutional rights entirely.
The Texas ban covers most abortions after six weeks, and it includes provisions allowing for private citizens to bring lawsuits against those suspected of involvement in the procurement of illegal abortions. Stone argued on Monday that it would be out of line for the federal courts to block state courts in Texas from participating in the enforcement of the abortion restrictions via hearing such cases. Instead, Stone insisted that it would be up to Congress to expand the purview of the federal courts in order to (as his theory went) more appropriately cover such scenarios. Kagan replied by noting how part of the “point of a right” seems to be that those holding such rights don’t “have to ask Congress.”
As Kagan pointedly put it:
‘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? 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 replied that observers “have to assume that other state courts’ judges are in fact going to faithfully apply the Constitution, its rights, and this court’s decisions.” Kagan noted in reply, however, that the state court process may not provide the relief to which those whose rights are being violated are entitled. As the judge phrased it:
‘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 right from the opportunity to do so in the maybe long-term interim.’
Notably, two right-wing Justices on the court — including Brett Kavanaugh and Amy Coney Barrett — “asked questions suggesting that they thought the novel structure of the Texas law justified allowing [abortion] providers to challenge it,” as The New York Times explains. Taking such a route would tee up more litigation over the law for lower-level courts. Theoretically, it could end up back at the Supreme Court. In the meantime, check out the Monday Kagan/ Stone exchange below: