The very fact that the court agreed to hear the appeals to be argued Monday on an extraordinarily fast track is an indication that at least one member of the original majority may be in play, said Lawrence Baum, a political scientist at Ohio State.
“The recent surveys showing a decline in approval of the court among the general public seem to have made some justices more sensitive to how people outside the court are reacting to its decisions,” he said.
The Texas law bans abortions after about six weeks and makes no exceptions for pregnancies resulting from incest or rape. In a novel structure intended to insulate the law from federal court review, it bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.
The patient may not be sued, but doctors, staff members at clinics, counselors and people who help pay for the procedure or drive patients to it are all potential defendants. Plaintiffs do not need to live in Texas, have any connection to the abortion or show any injury from it, and they are entitled to at least $10,000 and their legal fees if they win. Defendants who win their cases are not entitled to legal fees.
The Supreme Court’s earlier encounter with the case, culminating in an order issued just before midnight on Sept. 1, left the justices bitterly divided. In an unsigned opinion in that earlier case, the five-justice majority cited “complex and novel” procedural obstacles to blocking the law and stressed that it was not ruling on the constitutionality of the law.
“The negative reactions to the Sept. 1 decision probably surprised some of the justices in the majority,” Professor Baum said, “so that one or more of them felt a need to dispel the perception that they were responding to challenges to the Texas law in a cavalier way that simply reflected their attitudes toward abortion.”
Where does that leave Justice Kavanaugh?
He is, for starters, the member of the court most likely to acknowledge the power of the other side’s argument.