In early September, the Department of Justice filed its own lawsuit, naming the state of Texas as the defendant. The government argues, in part, that it has the power and the duty to ensure that Texas isn’t trampling the constitutional rights of millions of its residents. The government’s suit was initially successful when federal District Judge Robert Pitman in Austin, the state’s capital, penned an exhaustive and blistering opinion blocking S.B. 8. Some 48 hours later, the 5th Circuit reversed Pitman’s decision and allowed the law to again take effect.

Both the providers and the Justice Department asked the Supreme Court to intervene. In late October, it finally agreed to do so while still allowing the law to remain in force. On November 1, the court heard nearly three hours of arguments in both cases (Whole Woman’s Health v. Jackson and U.S. v. Texas). The question the justices agreed to consider was whether Texas could insulate an unconstitutional law from federal court scrutiny.

Texas Solicitor General Judd Stone told the justices there was “no doubt” that S.B. 8 was crafted to insulate it from a pre-enforcement challenge in federal court. But Stone denied that meant there was no way for providers to challenge its constitutionality. Indeed, he said they could do so before the state court judges tasked with hearing the vigilante-led lawsuits.

But in that scenario, wouldn’t the state judges only have the power to block the law on a case-by-case basis? Justice Amy Coney Barrett asked. Stone said that was right. “So that doesn’t resolve the issue,” she replied. “You cannot get global relief in the way you can in federal court.”

Several members of the court, including Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, questioned Stone about the implications of S.B. 8 for other rights: If Texas could craft a law to insulate its attack on abortion rights, what would stop other states from using the same method to target rights they disfavor? Stone’s answer was, essentially, that nothing would prevent that — except Congress, which could pass a law protecting whatever right was at issue.

Sotomayor was skeptical. What if a state wanted to craft an S.B. 8-style scheme to go after anyone who officiates, aids, or abets a same-sex marriage in violation of Supreme Court precedent? Or private consensual sexual conduct? Or the sale and use of contraception? “So this is not limited to abortion. That’s the point that has been raised,” she said.

That’s right, Stone said; under an S.B. 8-style law, the federal courts would be barred from intervening regardless of what right is being attacked.

“So your point is that no matter how much a state intends to chill exercise of a constitutional right … that does not give anyone a right to a federal forum when the state has deputized every citizen to act on its behalf?” she asked.

“No, it does not create federal jurisdiction as a consequence,” Stone said. In other words, Texas’s position is that any state has the power to manipulate current legal standards to insulate an unconstitutional law from a federal pre-enforcement challenge.

Both Sotomayor and Kavanaugh raised the question as it pertained to gun possession. Could a state pass a law targeting the owners of AR-15 assault rifles with a $1 million bounty for successful lawsuits and block the federal courts from stepping in? Kavanaugh asked. Again, Stone said, sure. And again, that it would be up to Congress to fix the problem.

Kagan stepped in: “Isn’t the point of a right that you don’t have to ask Congress?”

In a press call Monday afternoon, Marc Hearron, senior counsel with the Center for Reproductive Rights, which was arguing before the court on behalf of the Texas abortion providers, said he was encouraged that a number of the justices seemed disturbed by the implications of Texas’s position. “The real ramifications if the court were to turn away our suit here would mean that every single constitutional right that’s been recognized by the court could be nullified by any state,” Hearron said.

Whether the court will take any immediate steps to block S.B. 8 while it sorts all this out remains to be seen. And while it may ultimately rule in a way that precludes Texas from thumbing its nose at constitutional protections, that doesn’t necessarily mean that abortion in the state will return to anything like a pre-S.B. 8 normal. Because on December 1, the court is slated to hear another abortion case, Dobbs v. Jackson Women’s Health Organization, which involves a 15-week ban on abortion in Mississippi. While the court said it would consider the question of whether all restrictions on pre-viability abortion are unconstitutional, the state of Mississippi has asked it to go a step further and overturn abortion rights altogether.

If the court were to do that, or perhaps more likely, decide to seriously scale back the right to pre-viability abortion, the battle at the core of S.B. 8 could become moot.