The horror stories coming out of Texas over the last two months have been legion: abortion clinics flooded with calls from distraught patients; threats and harassment on the rise, including a drone deployed over a Planned Parenthood clinic to surveil patients and staff; and patients driving through the night, hundreds of miles and across state lines, in search of abortion services.
“I used to love living in Texas,” a pregnant mother of five who was seeking an abortion told staff at one of the state’s Planned Parenthood clinics. “Now I hate it. It feels like we’re prisoners.”
All of this is a result of the state’s now notorious S.B. 8, a de facto ban on abortion that took effect September 1. And according to the state of Texas, there’s nothing that the Biden administration or abortion providers can do to block it.
On its face, S.B. 8 bans abortion after about six weeks gestation, or as soon as nascent cardiac activity can be detected, which can happen before six weeks. That’s long before most people know they’re pregnant and months before a fetus is viable outside the womb. In Texas, roughly 90 percent of abortions happen after six weeks. Nearly 1 in 10 women of reproductive age in the U.S. live in Texas, according to the Guttmacher Institute; in 2019, nearly 56,000 Texans received an abortion in the state.
Eleven states have enacted a six-week ban, and in all those states, federal courts have blocked the restriction as a blatant infringement on the constitutional right to pre-viability abortion, which has been upheld for nearly 50 years. But so far, S.B. 8 has survived scrutiny, making it the only such law to have taken effect.
The difference between the Texas law and those that came before it is the way that it’s written. Where similar abortion bans were made enforceable by a state actor — say, the state health department or attorney general — Texas’s law turns enforcement over to private individuals, whom the state has empowered to file civil lawsuits against anyone they believe may have provided an abortion or helped someone obtain an abortion in violation of the law. The law, which allows anyone living literally anywhere to file suit, incentivizes its vigilante scheme by promising at least $10,000 for each successful lawsuit.
In so doing, the state has attempted to erect a wall between its unconstitutional law and the federal courts: If there’s no state actor tasked with enforcing the law, then there is no clear defendant to sue to block it from taking effect. This is what’s known as a pre-enforcement challenge, and it’s how abortion providers — suing on behalf of themselves and their patients — have successfully halted dozens of unconstitutional restrictions on abortion.
Despite the roadblocks erected by this scheme, a group of providers, doctors, clergy, and abortion funds sued to block S.B. 8 in July, naming as defendants the county clerks tasked with filing civil lawsuits and the state judges who would hear them. If the clerks were prevented from filing the suits, for example, the law could not be enforced. The coalition’s efforts were blocked by a recalcitrant 5th U.S. Circuit Court of Appeals and subsequently by an anti-abortion majority of the U.S. Supreme Court, which declined to intervene.
In early September, the Department of Justice filed its own lawsuit, naming the state of Texas as the defendant. The government argues, in part, that it has the power and the duty to ensure that Texas isn’t trampling the constitutional rights of millions of its residents. The government’s suit was initially successful when federal District Judge Robert Pitman in Austin, the state’s capital, penned an exhaustive and blistering opinion blocking S.B. 8. Some 48 hours later, the 5th Circuit reversed Pitman’s decision and allowed the law to again take effect.
Both the providers and the Justice Department asked the Supreme Court to intervene. In late October, it finally agreed to do so while still allowing the law to remain in force. On November 1, the court heard nearly three hours of arguments in both cases (Whole Woman’s Health v. Jackson and U.S. v. Texas). The question the justices agreed to consider was whether Texas could insulate an unconstitutional law from federal court scrutiny.
Texas Solicitor General Judd Stone told the justices there was “no doubt” that S.B. 8 was crafted to insulate it from a pre-enforcement challenge in federal court. But Stone denied that meant there was no way for providers to challenge its constitutionality. Indeed, he said they could do so before the state court judges tasked with hearing the vigilante-led lawsuits.
But in that scenario, wouldn’t the state judges only have the power to block the law on a case-by-case basis? Justice Amy Coney Barrett asked. Stone said that was right. “So that doesn’t resolve the issue,” she replied. “You cannot get global relief in the way you can in federal court.”
Several members of the court, including Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, questioned Stone about the implications of S.B. 8 for other rights: If Texas could craft a law to insulate its attack on abortion rights, what would stop other states from using the same method to target rights they disfavor? Stone’s answer was, essentially, that nothing would prevent that — except Congress, which could pass a law protecting whatever right was at issue.
“So this is not limited to abortion. That’s the point that has been raised.”
Sotomayor was skeptical. What if a state wanted to craft an S.B. 8-style scheme to go after anyone who officiates, aids, or abets a same-sex marriage in violation of Supreme Court precedent? Or private consensual sexual conduct? Or the sale and use of contraception? “So this is not limited to abortion. That’s the point that has been raised,” she said.
That’s right, Stone said; under an S.B. 8-style law, the federal courts would be barred from intervening regardless of what right is being attacked.
“So your point is that no matter how much a state intends to chill exercise of a constitutional right … that does not give anyone a right to a federal forum when the state has deputized every citizen to act on its behalf?” she asked.
“No, it does not create federal jurisdiction as a consequence,” Stone said. In other words, Texas’s position is that any state has the power to manipulate current legal standards to insulate an unconstitutional law from a federal pre-enforcement challenge.
Both Sotomayor and Kavanaugh raised the question as it pertained to gun possession. Could a state pass a law targeting the owners of AR-15 assault rifles with a $1 million bounty for successful lawsuits and block the federal courts from stepping in? Kavanaugh asked. Again, Stone said, sure. And again, that it would be up to Congress to fix the problem.
Kagan stepped in: “Isn’t the point of a right that you don’t have to ask Congress?”
In a press call Monday afternoon, Marc Hearron, senior counsel with the Center for Reproductive Rights, which was arguing before the court on behalf of the Texas abortion providers, said he was encouraged that a number of the justices seemed disturbed by the implications of Texas’s position. “The real ramifications if the court were to turn away our suit here would mean that every single constitutional right that’s been recognized by the court could be nullified by any state,” Hearron said.
Whether the court will take any immediate steps to block S.B. 8 while it sorts all this out remains to be seen. And while it may ultimately rule in a way that precludes Texas from thumbing its nose at constitutional protections, that doesn’t necessarily mean that abortion in the state will return to anything like a pre-S.B. 8 normal. Because on December 1, the court is slated to hear another abortion case, Dobbs v. Jackson Women’s Health Organization, which involves a 15-week ban on abortion in Mississippi. While the court said it would consider the question of whether all restrictions on pre-viability abortion are unconstitutional, the state of Mississippi has asked it to go a step further and overturn abortion rights altogether.
If the court were to do that, or perhaps more likely, decide to seriously scale back the right to pre-viability abortion, the battle at the core of S.B. 8 could become moot.