Weak tea
The Supreme Court declines to block Texas’s abortion law
Clinics may challenge the novel six-week ban—but on narrow grounds
ONE HUNDRED DAYS after it spurred an outcry by allowing the most extreme abortion law in American history to go into effect, the Supreme Court has backtracked ever so slightly. On December 10th the court, by a 8-1 vote (with Justice Clarence Thomas as the outlier), revived a lawsuit that could block Texas’s Senate Bill 8 and restore abortion care in the Lone Star state after the sixth week of pregnancy.
SB 8 took effect in Texas on September 1st, when the Supreme Court originally declined to block it. In clear violation of Roe v Wade, the 1973 Supreme Court decision protecting a constitutional right to abortion, the law bans terminations after six weeks of pregnancy with no exceptions for rape or incest. In lieu of enforcing the prohibition through criminal charges brought by state officials, private citizens are empowered to bring civil lawsuits against anyone they espy “aiding or abetting” an abortion. Plaintiffs stand to gather a bounty of at least $10,000 for each successful suit. The chilling effect resulting from this scheme has effectively nullified Roe for women in Texas.
Months later, the decision in Whole Woman’s Health v Jackson is likely to spur at least a temporary reprieve for reproductive rights in Texas. Yet that victory may be fleeting. It contains seeds that could undermine its own outcome. And it says nothing to allay concerns about the future viability of Roe, as the justices who switched positions did not do so out of concern for reproductive freedom. A week ago in the oral argument for Dobbs v Jackson Women’s Health Organisation, a challenge to Mississippi’s 15-week ban, the conservative justices made that emphatically clear.
Unlike Dobbs, Whole Woman’s Health is a purely procedural inquiry. The “ultimate” question of whether Texas’s ban “is consistent with the federal constitution” or wise “as a matter of public policy”, Justice Neil Gorsuch wrote for the majority, “is not before the court”. Yet the eight justices siding with the clinic in Whole Woman’s Health hindered, with varying degrees of censure, Texas’s effort to circumvent Supreme Court decisions by throwing in obstacles to court challenges.
Arguing in support of SB 8 last month, Jonathan Mitchell, architect of the law, was not coy about its design. By empowering only private citizens to enforce the six-week ban against those who facilitate an abortion, Texas removed the usual targets of challenges to abortion bans. Whether or not the law comports with the constitutional right to abortion, Mr Mitchell said, there is no one to sue preemptively in federal court.
The Supreme Court majority disagreed—narrowly. Justice Neil Gorsuch and three colleagues accepted Texas’s contention that court clerks, state judges and the attorney general may not be sued over this law, but they identified four individuals who could be proper targets of lawsuits. Officials at the Texas Medical Board, Texas Board of Nursing, Texas Board of Pharmacy and Texas Health and Human Services Commission are all “executive licensing official[s] who may or must take enforcement actions” against abortion providers “if they violate the terms of Texas’s Health and Safety Code”. Because these are “defendants with specific disciplinary authority over medical licensees”, Justice Gorsuch wrote, they may be sued by those seeking to block SB 8.
Chief Justice Roberts wrote a separate opinion, co-signed by the liberal justices, arguing that there are other legitimate defendants. Court clerks—the bureaucrats who file cases—are “unavoidably enlisted in the scheme to enforce SB 8’s unconstitutional provisions, and thus are sufficiently ‘connect[ed]’ to such enforcement to be proper defendants”. The Texas attorney general, too, is inextricably linked to the law’s enforcement. Chief Justice Roberts had harsher words for Texas than his conservative colleagues. SB 8 “effectively chill[s] the provision of abortions in Texas” and was rigged to “nullify this court’s rulings”. If state legislatures can “annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments”, his concurrence read, “the constitution itself becomes a solemn mockery”.
A much more pointed reprimand to Texas—and to her colleagues to the right—came from the pen of Justice Sonia Sotomayor. Writing for herself and the other two liberal justices—Stephen Breyer and Elena Kagan—Justice Sotomayor highlighted the impact of Texas’s law on the lives of its citizens and couched the majority’s parsimonious holding in favour of the clinics as dangerously weak tea that a craftier legislature could circumvent.
While expressing optimism that the district court will now pick up the ball and “act expeditiously to enter much-needed relief” for Texas women, Justice Sotomayor noted her exasperation with the delay. “The court should have put an end to this madness months ago, before SB 8 first went into effect”, she wrote. “It failed to do so then, and it fails again today.” She compared Texas’s ploy to “the philosophy of John C. Calhoun, a virulent defender of the slaveholding South” who maintained that states have veto power over federal laws. And she noted that by foreclosing lawsuits against court clerks and the attorney-general, the court “effectively invites other states to refine SB 8’s model for nullifying federal rights”.
The slim victory for the clinic in Texas, as the liberal justices warn, carries ominous signs for the future of abortion rights. The majority’s grudging assent to a small portion of the providers’ procedural argument was not accompanied by a reprimand to Texas. Chief Justice Roberts’s somewhat more animated opinion denounced only Texas’s methods, not its anti-abortion aims. Only the liberal justices reminded readers of the “havoc” wrought for women by the law. And only they noted that the court’s ruling could be a guidepost for Texas and other states interested in crafting vigilante-style enforcement mechanisms to circumvent constitutional rights.