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An unusual alliance appears likely to fracture Texas’s abortion ban

Most Supreme Court justices seem to understand that SB 8 is a direct attack on the Constitution.

Protesters hold signs that read “Bans off our bodies” in front of the US Supreme Court building.
Pro-abortion demonstrators rally outside the Supreme Court on November 1. The Court is hearing arguments Monday in a challenge to the controversial Texas abortion law which bans abortions after 6 weeks.
Drew Angerer/Getty Images

The abortion providers suing to block SB 8, Texas’s aggressive anti-abortion law, came into Monday’s Supreme Court argument with four votes on their side. Two months earlier, four justices thought the law should have been temporarily blocked while the legal challenge against it was sorted out — although the five most conservative justices voted against the abortion providers the first time Whole Woman’s Health v. Jackson was before the Court.

The same case is now back before the justices, this time raising a narrow dispute about who’s even allowed to sue to block the law. And the abortion providers appear likely to have picked up a crucial extra vote to gain the majority.

All four of the dissenters from the September order appear likely to rule against Texas. Though Chief Justice John Roberts, a conservative George W. Bush appointee, did ask one or two skeptical questions of Marc Hearron, the lawyer representing the abortion providers, he seemed to grow increasingly annoyed with Texas Solicitor General Judd Stone. At one point, Roberts admonished Stone for resisting a hypothetical question asked by the Chief.

Meanwhile, it also appears likely that Justices Brett Kavanaugh or Amy Coney Barrett will switch sides and provide the fifth (and maybe a sixth) vote against Texas. At one point in the argument, Kavanaugh pointed to a brief filed by the Firearms Policy Coalition, which argued that, if SB 8 is allowed to stand, “it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights” — including the Second Amendment.

Kavanaugh appeared to view such an outcome as untenable, and that’s bad news for SB 8.

That said, even if the Court does rule against Texas in Whole Woman’s Health, there’s no guarantee that such a decision will do much to help abortion providers in Texas.

The narrow question currently before the Supreme Court in Whole Woman’s Health — and in United States v. Texas, a similar challenge to SB 8 brought by the Justice Department that is also before the justices — is not whether the Texas law should be struck down. It is whether anyone is allowed to sue to block the law. The reason there’s any uncertainty about how to answer this question is that SB 8 was drafted for the very purpose of evading judicial review.

So even if the Supreme Court does rule that the abortion provider plaintiffs are allowed to sue, it is likely that there will still need to be more litigation in a federal trial court before SB 8 is actually determined to be unconstitutional and is blocked by a court order.

Texas’s law effectively bans abortions after the sixth week of pregnancy, a clear violation of the Court’s decision in Planned Parenthood v. Casey (1992), which guarantees a right to abortion until the fetus is sufficiently developed to survive outside the womb. Nevertheless, even if a trial court does find SB 8 to be unconstitutional, any order it issues blocking SB 8 could be swiftly halted by the conservative United States Court of Appeals for the Fifth Circuit — forcing the plaintiffs to once again return to the Supreme Court to challenge the Fifth Circuit’s decision.

Looming over all of this is another abortion case — Dobbs v. Jackson Women’s Health Organization — which will be argued in December, and asks the Court to overrule Roe v. Wade altogether.

There is a risk, in other words, that by the time the courts sort out whether to strike down SB 8, the Supreme Court will declare that there is no constitutional right to an abortion. And then it won’t matter nearly as much what the courts do with SB 8 — because Texas will be able to pass a law criminalizing abortion outright.

SB 8 was drafted in order to thwart judicial review

Texas’s anti-abortion law is, Chief Justice Roberts wrote previously, “not only unusual, but unprecedented.” It effectively prohibits all abortions after the sixth week of pregnancy, but does so through a scheme that, in Justice Sonia Sotomayor’s words, was “engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”

Supreme Court Justice Amy Coney Barrett and Chief Justice John Roberts talk at the Supreme Court building on October 1.
Al Drago/Bloomberg via Getty Images

Under a doctrine known as “sovereign immunity,” private plaintiffs typically are not allowed to sue a state directly in federal court. But the Court held in Ex parte Young (1908) that private plaintiffs may sue the state official tasked with enforcing the law that such a plaintiff wishes to challenge. So, for example, if a law permitted the state attorney general to bring criminal proceedings against abortion providers, a party challenging the law would sue the attorney general.

But SB 8 explicitly forbids any “officer or employee of a state or local governmental entity” in Texas from enforcing it. Instead, it may only be enforced through private lawsuits. These lawsuits may be filed by “any person” who is not an employee of the state against anyone who either performs an abortion or who “aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant.

So the idea is that no one can sue to stop the law because no state official is a proper defendant.

This structure, it should be noted, does permit abortion providers to perform an abortion that violates SB 8, wait until they are sued, and then argue in Texas state court that SB 8 is unconstitutional. The problem with that approach, as Hearron told the justices, is that “no rational abortion provider would violate this law.”

Anyone who does so could be bombarded with thousands of lawsuits, forced to hire an army of lawyers to defend against them, and then be ordered to pay a bounty of at least $10,000 — which means that there is no upper limit on that bounty.

The abortion provider plaintiffs’ primary argument is that, under Young, they may sue state court judges who hear SB 8 lawsuits, and the state court clerks who docket those cases. Yet, while the justices did spend a good deal of time discussing whether judges and clerks are proper defendants, their most revealing questions focused on whether a law like SB 8 should be allowed under any circumstances.

The three most conservative justices — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — appeared likely to uphold Texas’s scheme, although Thomas did ask some tough questions of Stone, the Texas lawyer. Thomas noted that SB 8 is unlike other laws permitting lawsuits against private defendants because other laws typically only allow plaintiffs who’ve been injured in some way to file suit.

SB 8, by contrast, effectively deputizes anyone who is not a state official to enforce the state’s anti-abortion law — regardless of whether a particular plaintiff was actually injured by the person they are suing. As Thomas put it, SB 8 plaintiffs are “acting in concert with the state” to enforce the state’s law.

The three liberal justices, meanwhile, left no doubt that they view SB 8 as unacceptable. Sotomayor, for example, pointed to the Court’s school segregation decision in Cooper v. Aaron (1958), which held that the Constitution “can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes.”

Justice Stephen Breyer, meanwhile, quoted early 20th century Justice Oliver Wendell Holmes, who said, “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.” SB 8, Breyer suggested, would prevent the Court from striking down state laws.

Roberts, meanwhile, seemed to share the liberal justices’ concerns. He imagined a slightly different version of SB 8, where the minimum bounty was $1 million instead of just $10,000 — and warned that no one would reasonably be willing to risk violating such a law because the cost of losing would be so high. He also criticized Texas for passing a law that allows abortion providers to be sued anywhere in the state, rather than following the ordinary rules governing which legal venues are appropriate.

So that leaves Kavanaugh and Barrett as the justices in the middle, and both appeared sympathetic to the plaintiffs’ arguments.

Kavanaugh’s worried about what an SB 8-style law would do to the Second Amendment

If SB 8 is upheld, and the Court permits the use of private bounty hunters to limit constitutional rights, another state could easily use this mechanism not just to restrict abortions and reproductive care, but also to chill other constitutional rights. As the Firearms Policy Coalition argued in its amicus brief, “it takes little in the way of creative copying for States hostile to the Second Amendment — New York, California, New Jersey, Hawaii, etc. — to declare that the ownership or sale of a handgun is illegal ... and set up a bounty system with the same unbalanced procedures and penalties adopted by Texas in this case.”

This possibility seemed to bother Kavanaugh, who asked about whether a state could authorize a million-dollar bounty against anyone who sells an AR-15, a popular form of semi-automatic rifle.

Even more significantly, Kavanaugh appeared to echo the liberal justices’ concerns that Texas is gaming the system. There’s a loophole that’s been exploited here,” he told Stone, and suggested that the question before the Court in the Whole Woman’s Health case is “should we extend the principle of Ex parte Young to close this loophole?”

Stone, meanwhile, had a disastrous exchange with Kavanaugh where he argued that someone targeted by an SB 8-style law would have to lobby Congress to enact a federal law protecting their constitutional rights. It “would be difficult to get legislation through Congress,” Kavanaugh deadpanned in response to Stone — an acknowledgement the federal government’s dysfunctional legislative branch is not likely to do much of anything at all.

Barrett, meanwhile, played her cards a little closer to her chest than Kavanaugh, but she seemed bothered that there was no adequate way to challenge SB 8 unless the federal judiciary intervenes. At one point, she expressed concern that abortion providers “cannot get full review” of the law in state court. At another, she questioned whether an SB 8 defendant would be able to get a broad injunction blocking the law in state court.

So, while it remains to be seen how each justice votes, it appears that there may be as many as six votes to allow a lawsuit against SB 8 to move forward. The possibility that any constitutional right could be undermined by an SB 8-style law appeared to bother at least some of the conservative justices who ordinarily vote against abortion rights.

That doesn’t necessarily mean that legal abortions will move forward in Texas — as mentioned above, there is a risk that the courts do not effectively block SB 8 until after the Court hands down its Dobbs decision, which could allow Texas to criminalize abortion outright.

But it does suggest that, at the very least, the Supreme Court isn’t going to give states the power to give the middle finger to its decisions.

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