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Don’t be fooled: The Supreme Court’s Texas abortion decision is a big defeat for Roe v. Wade

Justice Neil Gorsuch’s majority opinion is sneaky, underhanded, and a big blow to abortion rights.

Supreme Court abortion case - Washington, DC
Abortion rights activists carry cutouts of Supreme Court justices outside the Supreme Court as it prepares to hear a case from Mississippi that could challenge the law on abortions on December 1, in Washington, DC.
Matt McClain/The Washington Post via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

On first glance, it would be easy to see the Supreme Court’s decision Friday in Whole Woman’s Health v. Jackson as a win for abortion rights. It would also be wrong.

More than two months after the Supreme Court allowed SB 8, a Texas law that effectively bans abortions after the sixth week of pregnancy, to take effect, the Court followed it up with a 5-4 decision that is an even larger defeat to proponents of abortion rights, and a victory to anti-abortion lawmakers in Texas.

The specific question in Jackson is whether abortion providers are allowed to bring a federal lawsuit seeking to block SB 8. Although Justice Neil Gorsuch’s majority opinion technically answers this question in the affirmative, it permits suits only against state health officials who play a very minimal role in enforcing the law. It does not allow suits to proceed against the Texas state officials who play the biggest role in enforcing SB 8: state court judges and clerks.

The upshot of this decision is that, while the abortion provider plaintiffs in Jackson may be able to get a federal court order declaring that SB 8 is unconstitutional, the only real relief they are likely to win is an order preventing a few state health officials from carrying out the minor role they play in enforcing the law. The most important provisions of the law — the ones that effectively prevent anyone from performing an abortion after the sixth week of pregnancy by threatening them with financial ruin if they do so — will most likely remain in effect.

Though procedural sophistry, Gorsuch and the other justices who joined his opinion engineered the outcome Texas wanted. And the implications of this case could stretch far beyond abortion cases.

SB 8 was written for the very purpose of evading judicial review, and Jackson largely blesses that tactic. As Justice Sonia Sotomayor writes in dissent, Gorsuch’s opinion “leaves all manner of constitutional rights more vulnerable than ever before.” If states can use an SB 8-style law to nullify the constitutional right to an abortion, they could very well use it to nullify any other constitutional right.

How SB 8 dodges judicial review

SB 8, as Sotomayor explained in a September opinion, was “engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”

Under the Supreme Court’s interpretation of the Constitution in Planned Parenthood v. Casey (1992), “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” which occurs around the 24th week of pregnancy. But the Constitution is not a self-executing document. Typically, someone who believes that a state is violating their constitutional rights must obtain a court order mandating the state’s compliance. SB 8 seeks to thwart that process by making it nearly impossible to challenge the law.

Normally, private plaintiffs can’t sue a state directly in federal court — but they can sue the state official tasked with enforcing an unconstitutional law. SB 8 seeks to exploit this structure by forbidding any “officer or employee of a state or local governmental entity” in Texas from enforcing the state’s anti-abortion law. Instead, the law may only be enforced through private lawsuits.

Such 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 — and there is no upper limit on this bounty.

The idea behind SB 8 is that no one can challenge the law in federal court because there is no state official who can enforce it. And thus there is no proper defendant.

Why Gorsuch’s opinion is a victory for Texas

The Jackson plaintiffs argued that there are, in fact, several state officials who are charged with enforcing SB 8. Most importantly, they sued a state court judge and the clerk of a state court — the idea being that lawsuits seeking a bounty under SB 8 cannot move forward unless a judge hears the case and a clerk performs certain administrative tasks.

But Gorsuch’s opinion holds that suits against these judges and clerks may not move forward. Indeed, Gorsuch audaciously claims that allowing a lawsuit to proceed against state court officials tasked with enforcing a law that was designed to nullify the Constitution would lead to a slippery slope.

“If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law,” Gorsuch writes, “what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws?”

That said, Gorsuch’s opinion does allow the plaintiffs’ suit to move forward against a list of state health officials, including the executive directors of the state’s medical, nursing, and pharmaceutical boards. These officials, Gorsuch explains, do play a small role in enforcing SB 8. “Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8.”

So that means the plaintiffs may seek a court order forbidding these officials from moving forward with such an enforcement action. But so what?

Typically, when a federal court wants to halt a state law that violates the Constitution, it issues an order known as an injunction, which forbids the relevant state officials from enforcing that law. But injunctions typically cannot be issued against someone who is not a party to a lawsuit.

Under Gorsuch’s opinion, the only remaining defendants in the SB 8 litigation will be the smattering of health officials tasked with bringing enforcement actions against licensed health providers who violate SB 8. The state court judges and clerks who hear SB 8 lawsuits seeking a bounty from abortion providers are no longer a party to this litigation, and therefore cannot be enjoined.

(It’s theoretically possible that someone might bring a suit seeking to block an individual SB 8 plaintiff from filing a lawsuit. But such a suit would likely run into a similar problem — an injunction against that plaintiff wouldn’t apply to other potential plaintiffs.)

A federal court, in other words, isn’t allowed to block the most important parts of SB 8 — the part allowing “any person” to seek a bounty from an abortion provider, and the part allowing state court judges to order providers to pay such a bounty. The Texas legislature, moreover, could potentially shut down federal lawsuits challenging SB 8 altogether, simply by repealing the provision of state law that permits health officials to bring enforcement proceedings against people who violate it.

So the bottom line is that Texas won. The state devised a scheme to evade judicial review, and five justices just blessed that scheme.

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