Upon further review
The Supreme Court seems poised to rule against Texas’s six-week abortion ban
The justices appeared uneasy with the precedent that law would set
TWO MONTHS ago, with one paragraph of explanation, a 5-4 majority on the Supreme Court green-lit Texas’s ban on abortion at six weeks of pregnancy—18 weeks before Roe v Wade says states can step in to protect fetal life. On November 1st, the justices gave the law, known as Senate Bill 8 (SB8), more thorough consideration in a pair of oral arguments: Whole Woman’s Health v Jackson, a challenge from abortion clinics, and United States v Texas, a follow-on suit brought by the Biden administration.
SB 8 is unprecedented in both its reach—a near-categorical prohibition before most women know they are pregnant, with no exceptions for rape or incest—and its structure, and it looks unlikely to last. Judging by their questions, Justices Amy Coney Barrett and Brett Kavanaugh seem inclined to join the four original dissenters in putting the brakes on the Lone Star state’s cunningly draconian abortion ban.
SB 8 aims to thwart lawsuits in federal courts by taking enforcement out of the hands of state actors (the usual targets of suits challenging a law’s constitutionality) and empowering private citizens to sue anyone performing, aiding or abetting an illicit abortion. The incentive to sue, and the deterrent to abortion providers, are strong: successful plaintiffs get a $10,000 bounty payable by the defendant, who is also liable for court costs. The law has, thus far, achieved its goals. It has prevented abortions after six weeks in the state and forced Texans onto the highways to seek care in clinics as far afield as Kansas.
The questions at stake are primarily procedural: can the clinics challenge the law by suing either the attorney general, state judges or state clerks who are involved in implementing it? And can the federal government sue Texas directly—and legally prevent enjoin private defendants from suing abortion providers—for attempting to circumvent nearly a half-century of abortion-rights jurisprudence?
Jonathan Mitchell, a law professor and former clerk to the late Justice Antonin Scalia, devised SB 8’s decentralised enforcement scheme. Defending the measure, he told the justices the government had no one to sue; the state had “washed its hands of the matter” when it said only non-state actors (meaning ordinary Texans) could bring lawsuits. Justice Sonia Sotomayor said that cannot insulate a state from legal responsibility.
Justice Clarence Thomas, following a similar line of inquiry, asked Texas’s solicitor-general, Judd Stone, whether ordinary Texans suing under SB8 are “acting in concert with the state to enforce a state-preferred policy?” No, Mr Stone said, because these individuals oppose abortion and have legal standing on their own: an injury from countenancing something “so extreme and outrageous” that it “causes them extreme moral or…psychological harm”. The government cannot sue because the state itself is not acting, Mr Stone argued; the only recourse is to ask Congress to “expand access to the federal courts.”
Mr Stone responded similarly when Justice Kavanagh mentioned an amicus brief from the Firearms Policy Coalition. The gun-rights organisation warned that Texas’s approach could threaten many other constitutional rights. So what about a state that wants to subvert speech rights, freedom of religion or the Second Amendment? What about a state that makes “everyone who sells an AR-15” subject to a $1m fine through private enforcement? Are these gun shop owners out of luck, too? When Mr Stone said “yes”, the fate of Texas’s enforcement mechanism seemed sealed. But Justice Elena Kagan piled on with a cutting response to his repeated comment that Congress could step in to open access to the federal courts. “Isn’t the point of a right”, she said, “that you don’t have to ask Congress?”
The lawyer for the abortion clinics pointed out that, given the structure of SB 8, even successful defendants would need to keep fending off untold suits from other plaintiffs. And Elizabeth Prelogar, Mr Biden’s freshly confirmed solicitor general, criticised Texas’s attempted end-run around the constitution. “Our constitutional guarantees”, she said, “cannot be that fragile”. Both liberal and conservative justices seemed to agree with that sentiment, but many were troubled by both the scope of the injunction requested by the federal government and the prospect of future attempts to meddle with state laws. So it seems unlikely that the court will side with the federal government in US v Texas. Instead, the court seems inclined to allow litigation to proceed under Whole Woman’s Health v Jackson, sending it back down to the district court. The main questions are how quickly the Supreme Court will act, and whether it will temporarily block the law while suits wend their ways through lower courts.
But another abortion showdown focused squarely on the substance of the matter looms on December 1st. In Dobbs v Jackson Women’s Health Organisation, the justices will ask whether Mississippi’s 15-week abortion ban comports with the constitution. Under Roe and later rulings, notably Planned Parenthood v Casey in 1992, it does not. If the court upholds the Mississippi law, it will upend—if not officially overrule—these precedents. The tenor and haste of the oral arguments today suggest the justices may want to decide on SB8 before taking up Dobbs. The majority may be inclined to take an axe to abortion rights, but it does not seem keen to jeapordise its own authority—or to let renegade states use trick plays to get around Supreme Court decisions they do not like.