Justice Amy Coney Barrett asked the lawyer representing abortion providers a line of friendly questions, suggesting she may have some sympathy for their arguments in the Texas six-week abortion ban case.
Barrett is a crucial vote in the case. She declined to vote in favor of blocking the law at earlier stages in the proceedings.
On Monday, she asked about what kind of defense providers and others who facilitate abortions after six weeks can put in court if they are sued under Texas law. Her questions hit on a key issue in the case. The law’s foes argue that the extraordinary nature of the Texas law, and how it tilts the state litigative system against abortion providers, warrants extraordinary action by the federal judiciary.
Texas and its allies are arguing that the constitutional questions that the ban raises can be resolved in the state court litigation brought under the law
Barrett asked whether the providers, when facing state court litigation under the ban, can mount a full constitutional defense of their actions, under the law’s restrictions of what they can argue in the state court litigation.
In a follow up, she suggested that the way that the enforcement mechanism was designed – in how it precludes what defendants can argue about the undue burden being placed on them – seemed to be at odds with the court’s previous rulings on abortion rights.
Tellingly, Justice Samuel Alito — who has asked tough questions of the providers — jumped in to the line of questioning to lob another pointed question at the providers.