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Texas’s draconian anti-abortion law remained in effect as the Supreme Court heard oral arguments on November 1 about whether it could be challenged in court. Known as the “Texas Heartbeat Law,” Senate Bill 8 (SB 8) outlaws all abortions after cardiac activity can be detected, generally after six weeks of pregnancy when most people don’t know they’re pregnant. The law contains no exception for rape or incest. Since September 1, when SB 8 became operative, it has prevented most abortions in Texas. Nearly 1 in 10 women of childbearing age live in Texas, the PBS NewsHour reported.
SB 8 squarely violates Roe v. Wade, which allows abortions until fetal viability — around 23 weeks. Although it appeared during the arguments that a majority of justices will permit SB 8’s constitutionality to be tested in court, the justices may nevertheless overturn Roe. On December 1, the high court will hear arguments in Dobbs v. Jackson Women’s Health Organization, about a Mississippi law that prohibits abortions after 15 weeks. The lawyers representing the State of Mississippi in Dobbs are specifically asking the court to overrule Roe v. Wade.
The Texas law was intentionally drafted to prevent judicial review of its constitutionality by stipulating that no state official can enforce the law. SB 8 deputizes everyone else to sue abortion providers and those who “aid and abet” an abortion — including counselors, family members, clergy and even Uber drivers. Victorious plaintiffs receive a bounty of $10,000 and defendants must pay plaintiffs’ attorneys fees. SB 8 is a cynical attempt by the Texas legislature to bribe people to sue anyone who helps a woman obtain an abortion.
Can SB 8’s Constitutionality Be Tested?
Laws are generally challenged by filing lawsuits against the state officials charged with their enforcement. The State of Texas argues that since the terms of SB 8 forbid state officials from enforcing it, the law cannot be tested in court because there are no proper defendants to sue.
During arguments, the Supreme Court considered two different cases that seek an injunction to stop the enforcement of SB 8. In Whole Woman’s Health v. Jackson, abortion providers are suing Texas court clerks and judges. In United States v. Texas, the Department of Justice (DOJ) is suing the State of Texas. The court is considering only the procedural issue of whether either or both of those cases can proceed through the courts.
On September 1, in Whole Woman’s Health, five right-wing members of the court refused to block SB 8 from taking effect, because, they wrote, “It is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.” They did not consider the constitutionality of SB 8. Chief Justice John Roberts joined the three liberals in voting to halt SB 8 until the constitutional merits could be considered by lower courts. Meanwhile, most abortions remained illegal in Texas.
On September 9, the DOJ sued Texas and requested an injunction to stop the enforcement of SB 8. On September 14, the DOJ filed an emergency motion for a temporary restraining order or preliminary injunction in United States v. Texas, asking the court to immediately halt the implementation of SB 8.
On October 6, in a 113-page ruling, U.S. District Court Judge Robert L. Pitman granted the DOJ’s request for an injunction. “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution,” Pitman wrote. “This court will not sanction one more day of this offensive deprivation of such an important right.”
Two days later, the Fifth Circuit Court of Appeals overruled Pitman’s decision and reinstated SB 8. People who provided abortions and assisted women in obtaining them during the 48 hours between the rulings of the district court and the appeals court could still be sued under SB 8.
SB 8 Could Be Model for Targeting Other Rights
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch appeared poised to deny the plaintiffs in both lawsuits their day in court to challenge the constitutionality of SB 8. Meanwhile, even though Justices Brett Kavanaugh and Amy Coney Barrett voted not to block SB 8 before it took effect, they — as well as Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer and John Roberts — appeared open to allowing the Whole Woman’s Health lawsuit to proceed.
In United States v. Texas, however, most of the justices seemed wary of permitting the federal government to sue a state for violating constitutional rights.
It is the unusual structure of SB 8 that will apparently motivate Kavanaugh and Barrett to allow judicial challenges to its constitutionality. Kavanaugh worries that SB 8 can “easily be replicated in other states” to target gun rights and restrict the free exercise of religion and freedom of speech. He cited concerns of gun lobbyists that states may use the same strategy to inoculate strict gun laws against legal challenges. Kavanaugh quoted an amicus brief filed by the Firearms Policy Coalition, which argued that if SB 8 is upheld, “It will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets.”
Barrett was concerned that even if an abortion provider gets an injunction in state court, it wouldn’t stop other people from bringing new state lawsuits against the same provider. “You cannot get global relief,” she said.
Kagan (agreeing with prior remarks by Breyer) said that the purpose of SB 8 is “to find the chink in the armor of Ex Parte Young, that set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws.” Kagan decried “the fact that after, oh, these many years, some geniuses came up with a way to evade the commands of” that case.
“The combined effect [of SB 8] is to transform the state courts from a forum for the protection of rights into a mechanism for nullifying them,” Whole Woman’s Health attorney Marc A. Hearron told the justices. Texas “has weaponized the state court system into a tool that can be used to abrogate constitutional rights,” he said.
Solicitor General Elizabeth B. Prelogar, representing the federal government, said, “It’s the flood of SB 8 enforcement suits that could be filed that is chilling the exercise of the constitutional right today.” Referring to the people who can’t now get abortions, she added, “Texas has succeeded in being able to nullify the right currently while these cases are working their way through the courts.”
If the court allows either or both cases to proceed, it would not necessarily signal the conservatives’ support for upholding Roe v. Wade. Five right-wingers, including Kavanaugh and Barrett, voted two months ago to allow SB 8 to go into effect without any briefing, argument or consideration by the lower courts.
The November 1 arguments only dealt with whether there could be a legal challenge to SB 8, not whether it would ultimately be successful. Stay tuned for the December 1 arguments in Dobbs, in which the Mississippi law does not present the same procedural problems as SB 8. Dobbs does, however, squarely present the court with a request to overturn Roe v. Wade.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Veterans for Peace. She testified before Congress about the Bush torture policy. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse.