Supreme Court Justice Elena Kagan on Monday pushed back against a Texas law that allows private citizens to enforce abortion restrictions.
November 1, 2021

Supreme Court Justice Elena Kagan on Monday pushed back against a Texas law that allows private citizens to enforce abortion restrictions.

During oral arguments in Whole Woman's Health v. Jackson, Justice Brett Kavanaugh expressed concern that Second Amendment rights could also be at risk if the Texas abortion law is allowed to stand.

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.

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