Novel Texas abortion case is back at the Supreme Court

Abortion rights are front and center at the U.S. Supreme Court on Monday, but not the way most people expected. The focus will not be on abortion rights, per se, but on the controversial Texas law designed to prevent court challenges.

At issue is whether a state can nullify a constitutional right — in this case the right to abortion — by delegating enforcement not to state officials, but to private citizens who are authorized to sue abortion providers and anyone else who aids or abets an abortion.

This is the second time that the novel Texas law has come before the court. In a midnight ruling two months ago, the court, by a 5-4 vote, allowed the law to go into effect, over the protests of the court's three liberals and its conservative chief justice, John Roberts. The chief justice called the law "unprecedented" because it outsourced enforcement to "the populace at large" in order to "insulate" the state from being held accountable for an apparently unconstitutional law.

Indeed, those who wrote the law have boasted about how it is designed to avoid review in the federal courts. Jonathan Mitchell, the former Texas solicitor general who conceived of the design that "boxed out the judiciary" from stopping the law, asserts that states "have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's."