On October 14, the conservative United States Court of Appeals for the Fifth Circuit formally blocked a trial court’s decision halting SB 8, a Texas law banning most abortions in that state. On Monday, the US Justice Department, which sued to halt the Texas law, sought review of the Fifth Circuit’s thinly reasoned, single-paragraph order in the Supreme Court.
The Supreme Court, where Republican appointees hold a 6-3 supermajority, is unlikely to do anything to restore abortion rights in Texas. Last month, a 5-4 Court handed down its own thinly reasoned, single-paragraph order permitting the Texas law to take effect. The Court also plans to hear a case in December, Dobbs v. Jackson Women’s Health Organization, which asks the justices to overrule Roe v. Wade altogether.
But there are some important legal distinctions between the current challenge to SB 8, known as United States v. Texas, and the Court’s previous order in Whole Woman’s Health v. Jackson allowing SB 8 to take effect. Specifically, the Justice Department argues in its request for relief that the United States is allowed to sue Texas directly, even if private parties may not.
The Texas law was specifically drafted to evade judicial review. Ordinarily, a plaintiff who wishes to challenge a state law in federal court must sue the state official charged with enforcing that law. If a state law requires police to block access to abortion clinics, for example, a clinic might sue the chief of police charged with carrying out this law.
But SB 8, written to sidestep that kind of legal challenge, explicitly forbids any “officer or employee of a state or local governmental entity” in Texas from enforcing it. The idea is that, if no state official can enforce the law, abortion rights plaintiffs have no one to sue.
Instead, SB 8 permits “any person” who is not an employee of the state to file a lawsuit against anyone who performs an abortion or who “aids or abets the performance or inducement of an abortion.” Victorious plaintiffs collect a bounty of at least $10,000 from any such defendant.
This scheme, as Chief Justice John Roberts noted in his dissenting opinion in Whole Woman’s Health, “is not only unusual, but unprecedented.” As Justice Sonia Sotomayor wrote in her dissent, the law is “engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”
And yet, in Whole Woman’s Health, the five most conservative justices effectively blessed this attempt to frustrate judicial review. Although it is possible that the Court will strike down SB 8 at a later date (most likely after it has hobbled or even eliminated the constitutional right to an abortion in its Dobbs decision), the Court’s order in Whole Woman’s Health claims that it is not “clear whether, under existing precedent, this Court can issue an injunction” against the state law.
Rather than resolve that uncertainty, the five anti-abortion justices in the majority simply allowed SB 8 to take effect.
The new challenge from the DOJ argues that, at least in an unusual case such as this one, the United States should be allowed to sue the state of Texas — and that it should be able to do so specifically because no one else can. As Judge Robert Pitman, who briefly blocked SB 8 before his decision was stayed by the Fifth Circuit, summarized the DOJ’s argument, the United States should be allowed to step in when “(1) a state law violates the constitution, (2) that state action has a widespread effect, and (3) the state law is designed to preclude review by the very people whose rights are violated.”
Again, this argument is unlikely to prevail in the same Supreme Court that handed down the order in Whole Woman’s Health. A majority of the justices appear quite happy with a world where, at least for now, no one can sue to block SB 8.
But the Justice Department’s arguments that the United States can act as a kind of plaintiff of last resort are, at least, plausible under the Supreme Court’s existing precedents.
The DOJ faces two legal obstacles in its lawsuit against Texas
The problem created by SB 8, and by the Court’s decision in Whole Woman’s Health, is that, if the United States cannot sue, there will be no viable way to challenge SB 8 in court.
There’s no serious question that SB 8 is unconstitutional under existing Supreme Court precedents. In Planned Parenthood v. Casey (1992), the Court held that the Constitution protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.” “Viability” refers to the moment when a fetus could live outside the womb.
SB 8 effectively forbids abortions after the sixth week of pregnancy, long before the point of viability. Thus, so long as Casey remains good law, the only real legal question in the Texas lawsuit is whether the United States is allowed to sue the state. In order to do so, it must overcome two hurdles.
First, like anyone who brings a federal lawsuit, the federal government must show that it has “standing” to challenge SB 8 — meaning that the United States needs to demonstrate that it is injured in some way by the Texas law.
This problem, however, should be easily overcome. As Pitman explained in his opinion, various federal laws require the United States to assist people who need abortions. Prison regulations provide that medical officials in federal prisons “shall arrange for an abortion to take place” when a pregnant inmate requests one. Under certain circumstances, the Defense Department is required to provide abortions. Medicaid may be required to cover medically necessary abortions.
But, under SB 8, federal officials who fulfill these legal obligations can be sued and potentially forced to pay bounties. And the federal government will have to pay for the cost of transporting at least some abortion patients in Texas across state lines. That’s enough to establish standing.
The second and more difficult question is why the federal government should be the plaintiff of last resort. DOJ rests the lion’s share of its argument on In re Debs (1895), a Gilded Age decision giving federal courts extraordinary authority to halt union activities that disrupt interstate commerce (Debs arose out of a massive railroad strike that threw shipping in the Midwest into disarray).
Debs suggests that the federal government must have the power to assert its own interests in federal court, even when no federal law authorizes it to do so. “Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare,” the Court explained, “has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other.”
Though Debs conceded that the federal government may not file a lawsuit to “interfere in any mere matter of private controversy between individuals,” it permitted suits “whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation, and concerning which the Nation owes the duty to all the citizens of securing to them their common rights.”
The DOJ argues that these conditions are met because, if the DOJ cannot sue to block SB 8, there will be no one to secure “common rights” protected by the Constitution. “Just as the United States could sue in Debs to eliminate a grave threat to its sovereign interest in the free flow of interstate commerce,” the Justice Department argues in its brief to the justices, “it may sue here to eliminate S.B. 8’s grave threat to the supremacy of federal law and the traditional mechanisms of judicial review.”
Ordinarily, if a state law permitted private parties to sue abortion providers in state court, those providers could wait to be sued, and then argue that the law permitting them to be sued is unconstitutional during that state court proceeding. But SB 8 is designed to frustrate this normal process as well. For one thing, it contains a simply extraordinary provision stating that SB 8 defendants may not assert their “belief that the requirements of this subchapter are unconstitutional or were unconstitutional” as a defense in state court.
Even setting aside that provision, the mere threat of SB 8 lawsuits is enough to prevent abortion clinics from violating this unconstitutional law. Because the law allows literally any person who is not employed by the state of Texas to file such a suit, an abortion provider (or even someone who is falsely suspected of being an abortion provider), could be inundated with thousands of lawsuits, brought by plaintiffs from across the globe, and filed in any number of Texas state courts.
To defend against so many suits, a provider would likely need to hire a small army of lawyers — all at considerable expense. And if they lost just one suit, SB 8 permits the prevailing plaintiff to collect a bounty of “not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter.” There is no upper limit to this bounty, so a judge could conceivably force a provider to pay millions of dollars for a single violation.
SB 8, in other words, effectively punishes people suspected of performing abortions (or anyone who “aids or abets” an abortion) by subjecting them to potentially crippling legal fees before any court has even determined that they violated the law. And the law also prohibits defendants from recouping their attorney’s fees. The mere fact that someone impoverished by legal bills might eventually be able to argue in state court that SB 8 is unconstitutional offers no real relief.
So the DOJ makes an entirely plausible argument that permitting it to sue Texas is essential to vindicate the supremacy of the federal Constitution — a Constitution that, at least for now, is understood by binding Supreme Court precedent to protect abortion rights. But there’s no reason to think that the DOJ’s argument will convince the five justices who joined the majority in Whole Woman’s Health.
These justices already endorsed a regime where the right to an abortion goes unprotected within Texas’s borders. Why would they reverse course now?
A possible middle ground
Although this Court is unlikely to protect abortion rights, there are still potent reasons why even anti-abortion justices should oppose SB 8. For one thing, if Texas can offer bounties to anti-abortion plaintiffs — and evade judicial review in the process — other, bluer states could pass copycat laws. Do the justices really want New York to pass a law permitting “any person” to collect a bounty from gun owners?
Similarly, as explained above, SB 8 potentially imposes extraordinarily expensive legal fees on people who are suspected of performing an abortion, even if they didn’t actually perform an abortion.
Suppose, for example, that a false rumor circulates on Twitter that Dr. Jane Smith performed an abortion in Austin, Texas, when, in fact, Dr. Smith has never performed an abortion in her life. Under SB 8, Dr. Smith could be bombarded with hundreds or even thousands of lawsuits — enough that the legal costs of defending against these suits would bankrupt her.
I don’t have any illusions that this Supreme Court will hold that doctors who perform abortions cannot be punished. But I’d hope that we could all agree that doctors who are falsely accused of violating a state law should not be punished. If due process means anything, it should mean that Dr. Smith should get her day in court before she is forced into bankruptcy.
On Twitter, University of Texas law professor Steve Vladeck proposed a possible solution to this problem. If the Court isn’t willing to block SB 8, it should at least decide whether to strike down SB 8 at the same time that it is considering Dobbs.
Now that the Fifth Circuit has (again) showed its hand, #SCOTUS should treat DOJ's forthcoming application to vacate the stay in US v. Texas as a petition for cert before judgment, grant it *and* the providers' pending petition, and have them argued alongside Dobbs in December.— Steve Vladeck (@steve_vladeck) October 15, 2021
Vladeck’s approach would allow the Court to excise SB 8 even if it also nullifies the constitutional right to an abortion at the same time — and the Court handed down a brief order on Monday hinting that it may be inclined to do as Vladeck suggests. That way, there won’t be copycat laws targeting other constitutional rights. And there won’t be waves of lawsuits based solely on things like online rumors.