Supreme Court Ruling on Texas Abortion Law Opens Door to Copycat Schemes Everywhere

By leaving the law in place and barring meaningful ways to challenge it, the court greenlighted state efforts to overturn constitutional rights.

A general view of the U.S. Supreme Court, in Washington, D.C., on Friday December 10, 2021. During the week when Sen. Dole passed away, President Biden is hosting a virtual global summit on democracy, while Congress passed procedural measures in order to raise the debt ceiling before an impending federal default. (Graeme Sloan/Sipa USA)(Sipa via AP Images)
The U.S. Supreme Court in Washington, D.C., on Dec. 10, 2021. Photo: Graeme Sloan/Sipa via AP

For the last seven years, Dr. Bhavik Kumar has provided abortion care at the Planned Parenthood Center for Choice in Houston, Texas. “These last 100-plus days have been the most challenging of my entire career,” he said. That’s because of the near-total ban on abortion in Texas that went into effect on September 1. Since then, Kumar and other providers have been forced “to violate our conscience and our training, and to turn away patients who need us,” he said. “And we have no good answers to their questions of why this is happening or when it might end.”

On December 10, in a ruling with far-reaching consequences, the U.S. Supreme Court essentially said the challenges facing patients and providers might never end. Not only does the court’s ruling allow Texas’s abortion ban to remain in effect indefinitely, it also gives other states the green light to write additional laws that flagrantly violate the Constitution.

“The implications of today’s decision will be profound and will reverberate for years to come,” said Marc Hearron, senior counsel with the Center for Reproductive Rights. “Today it is abortion rights under attack. Tomorrow, I have no doubt we will see copycat abortion laws in other states. And after that, any other fundamental right recognized by the Supreme Court can come under attack, and the federal courts will be handcuffed from doing anything to stop it.”

The Ripple Effect of S.B. 8

At issue in the case is Texas Senate Bill 8, which bans all abortion after six weeks, well before many people know they’re pregnant. Roughly 90 percent of people who obtain abortions in the state are at least six weeks into pregnancy; 10 percent of the U.S. population of reproductive age lives in Texas. While similar bans enacted in 11 states have been blocked by the federal courts for flouting nearly 50 years of precedent upholding the right to abortion before fetal viability — roughly four months beyond the six-week mark — the Texas law was designed specifically to circumvent constitutional protections.

Instead of making the ban enforceable by a state actor, like the head of the state health department or the attorney general, S.B. 8 allows private actors to bring civil suits against anyone they believe may have provided an abortion or helped someone obtain an abortion in violation of the law. The latter could include a friend who drives a patient to a clinic or an abortion fund that helps to finance care.

The point is to farm out enforcement so there is no clear state actor for providers or patients to sue to block the law from taking effect, what’s known as a pre-enforcement challenge.

10 percent of the U.S. population of reproductive age lives in Texas.

In July, a coalition of Texas providers, abortion funds, doctors, and religious leaders tried to block the law by suing the clerks tasked with accepting civil lawsuits and the district judges who would have to handle those S.B. 8-generated cases. Their efforts were stymied by the 5th U.S. Circuit Court of Appeals, and the law took effect, creating chaos across the nation’s delicate and interconnected network of abortion providers.

Since the law took effect, two-thirds of patients calling the Trust Women clinic in Oklahoma City have been from Texas. Wait times for appointments have also skyrocketed: up to four weeks in Oklahoma and more than six weeks in Louisiana. The ripple effect of Texas’s law has been particularly consequential in states that are already weighed down by their own onerous abortion restrictions; patients there now face a whole new series of obstacles to accessing care.

Meanwhile, the federal government also filed suit to block S.B. 8, arguing that it had to do so to vindicate the constitutional rights of millions of Texans the state had disenfranchised. The effort was initially successful when federal District Judge Robert Pitman penned a blistering opinion blocking the law. Some 48 hours later, however, the 5th Circuit stepped in and reversed Pitman’s decision.

The providers and the federal government asked the Supreme Court to get involved, and on November 1, a full two months after the law had decimated reproductive rights in Texas, the justices heard arguments in both cases. The question before the court was whether the state could insulate itself from legal challenges to the law.

Texas Solicitor General Judd Stone argued that the state was well within its right to codify a law designed to evade federal oversight. The implications of this, however, seemed to bother a majority of the court: If Texas could do an end run around a constitutional right that it disfavored, what would stop other states from employing the same sort of legal maneuvering to single out rights they didn’t care for? Stone admitted that if Texas was successful, then all rights would essentially be up for grabs.

The Country Is Not Prepared

On December 10, the court’s majority retreated from the concerns expressed during oral arguments and instead blessed Stone’s position, allowed S.B. 8 to remain in effect, barred any meaningful way to challenge it, and dismissed the federal government’s suit.

Allowing abortion providers to sue court clerks or state judges to block enforcement of S.B. 8 would invite chaos, Justice Neil Gorsuch wrote for the majority. If federal judges could block the clerks from filing lawsuits related to S.B. 8, where would it all end? he asked. “Could federal courts enjoin those who perform other ministerial tasks potentially related to litigation, like the postal carrier who delivers complaints to the courthouse?”

The only state officials that the providers could sue, Gorsuch wrote, were state licensing officials: the heads of the medicine, nursing, and pharmacy boards, along with the state health official in charge of licensing abortion clinics.

“Abortion providers face calamitous liability.”

While that might sound like something, it provides little, if any, meaningful relief: These officials have the right to police individual providers and clinics pursuant to their licensing duties, but suing them does nothing to block random people, living anywhere in the country, from filing civil lawsuits under S.B. 8’s enforcement scheme. It also offers no protection for those who are alleged to have aided or abetted a person seeking an abortion: clinic staff, abortion funds, or the parents and friends who may help a patient along the way.

Justice Sonia Sotomayor pushed back in a fiery dissent. “The court should have put an end to this madness months ago, before S.B. 8 first went into effect,” she wrote. “It failed to do so then, and it fails again today.”

The state law not only outsources enforcement to bounty hunters — who can collect at least $10,000 for every successful suit they file — but it also perverts the civil justice system, erecting insurmountable obstacles in front of the providers and others who would have to defend themselves.

For example, while a provider may successfully argue in an individual lawsuit that S.B. 8 is unconstitutional, any such ruling would be isolated to that case. It wouldn’t stop another person from filing suit over the same alleged conduct, forcing the provider back into court again and again to make the same argument. And while the law guarantees that attorney fees will be paid to winning plaintiffs, it prohibits defendants from recouping fees if they win — so providers would have to fund their own defense “no matter how frivolous the suits,” Sotomayor wrote.

“Abortion providers face calamitous liability from a facially unconstitutional law,” she wrote. “The threat is not just the possibility of money judgments; it is also that, win or lose, providers may be forced to defend themselves against countless suits, all across the state, without any prospect of recovery for their losses or expenses.”

“This choice to shrink from Texas’s challenge to federal supremacy will have far-reaching repercussions.”

Because Texas passed a law that is blatantly unconstitutional under Supreme Court precedent and weaponized the civil justice system to enforce it, Sotomayor argued, the court was duty bound to step in and provide relief.

Sotomayor also expressed deep concern about what the court was unleashing by failing to stop Texas’s bold attempt to evade federal court oversight and usurp constitutional protections. “The dispute is over whether states may nullify federal constitutional rights by employing schemes like the one at hand,” she wrote. “The court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials.”

“This choice to shrink from Texas’s challenge to federal supremacy will have far-reaching repercussions,” she continued. “I doubt the court, let alone the country, is prepared for them.”

No Easy Answers

The fact that the Supreme Court had already allowed S.B. 8 to stand for months before hearing the case emboldened state lawmakers elsewhere to follow Texas’s lead. Copycat legislation has already been filed in Florida, Ohio, and Alabama. In Arkansas, Republican state Sen. Jason Rapert tried and failed (at least for now) to get his colleagues to take up Senate Bill 13 during a special session aimed at tax cuts. His proposal goes further than S.B. 8 and would ban all abortion. It also declares the bill an “emergency” measure, teeing it up to take immediate effect if passed, which lawmakers claim is necessary to stop pregnant people displaced by Texas’s law from seeking care in Arkansas.

The court’s monthslong inaction in the S.B. 8 case also signaled that it did not see a problem with denying the right of bodily autonomy to pregnant people.

The court has overturned its precedents in the past — but only in cases where its decision actually granted individuals broader constitutional rights.

Instead, on December 1, a month after oral arguments related to S.B. 8, the court heard arguments in a different abortion case, Dobbs v. Jackson Women’s Health Organization. While Dobbs was nominally about whether Mississippi could impose a 15-week ban on abortion, the state’s solicitor general made clear that what the state really wanted was for the court to do away with nearly 50 years of precedent supporting the right to abortion; a majority of the court seemed on board with that idea.

The court has overturned its precedents in the past — but only in cases where its decision actually granted individuals broader constitutional rights. Ruling in favor of Mississippi would mark the first time the court has overruled itself to constrict individual rights.

Where S.B. 8 is concerned, the legal road ahead isn’t entirely clear. On December 9, a Texas judge ruled that various aspects of the law’s enforcement mechanisms were unconstitutional — including deputizing private individuals and the mandatory award of at least $10,000 per lawsuit.

The ruling only impacts the 14 cases currently pending before state district Judge David Peeples — suits filed against the state’s largest anti-abortion activist organization, Texas Right to Life, by nonprofit organizations, providers, and Planned Parenthood. For now, the ruling only bars Texas Right to Life from suing those specific plaintiffs; the anti-abortion group has already appealed the decision.

But if the case makes it to the Texas Supreme Court, those justices could rule in a way that would block enforcement of the law statewide, said Julie Murray, a staff attorney at Planned Parenthood Federation of America. “Of course, that will take time,” she said. “The reality on the ground is that there are no easy answers.”

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