For anti-abortion activists, Texas's recent law, Senate Bill 8, must have seemed like magic--a way to stop abortion immediately, without the grind of constitutional litigation and its attendant legal fees. The law prohibits abortion when fetal cardiac activity can be detected, usually around the sixth week of pregnancy, but outsources enforcement to private citizens, who can collect at least $10,000 each time someone performs or "aids or abets" an abortion. Texas claims that this exotic structure insulated it from suit, and at first, the Supreme Court seemed to agree, letting the law go into effect without saying a word and then writing a pro forma order explaining that its hands were tied. For abortion foes, it must have all seemed too good to be true.
The Court doesn't seem sold on S.B. 8 anymore. Yesterday morning, the Court heard oral arguments in two challenges to the law, one brought by abortion providers and a second by the Justice Department. Two major questions guided the justices' questioning: whether the federal government can challenge the constitutionality of S.B. 8 and whether Texas can "effectively ban" what is still a constitutional right by outsourcing enforcement to private citizens.
At least from the clues provided during oral arguments, the Court seems inclined to side against Texas on the second question and thereby avoid having to answer the first question at all. Justice Brett Kavanaugh, a key vote in the case, seemed skeptical about Texas Solicitor General Judd Stone's responses, asking if a state could adopt an S.B. 8-style law to undercut the right to bear arms or freedom of speech or religion. Several justices floated the possibility that if they agreed that the providers could challenge the constitutionality of S.B. 8, the Court would not have to wade into the even more complicated procedural questions at issue in the Justice Department's suit. The signs seemed to point in the same direction: siding with the abortion providers in one case and making the Justice Department's go away.
Whether Texas knows it or not, the anti-abortion movement in fact stands to win--even if the justices act on their doubts and hand Texas a loss. A win for abortion providers will not be a sign of unexpected pro-abortion-rights sentiments among the justices. That is because the conservative members of the Supreme Court seem to have big plans for Roe v. Wade--and likely have long considered questions of how and when to roll back the right to abortion. The anti-abortion movement has long acted under the assumption that how Roe is reversed will matter, and that the abortion wars will not be over when Roe is gone. That means even a Court greatly sympathetic to the anti-abortion cause has to pick its spots--to carefully choose the best opportunities to reverse Roe and make its case to the American public.
As an opportunity to overturn Roe, S.B. 8 was never an ideal case. The law encourages strangers and neighbors to spy on one another, something unsettling even to some who oppose abortion. And the defenders of S.B. 8 said relatively little at the hearing about what was wrong with Roe or why fetal rights deserved protection. Instead, they insisted that they had gamed the system, finding a loophole that prevents the Court from saying anything at all. The S.B. 8 litigation landed in the justices' laps unbidden, and that is no surprise. If the justices are looking for the perfect way to reverse Roe, S.B. 8 only complicates matters.
If the justices allow abortion providers to sue, relief won't necessarily be immediate for women in Texas. Most likely, the Court will simply remand to the lower courts, which will take time to determine the constitutionality of the law (along the way, the conservative Fifth Circuit will probably allow the law to be in effect). By the time a final conclusion on S.B. 8 is reached, the Court may well have said something more definitive about the fate of abortion rights in the upcoming case Dobbs v. Jackson Women's Health Organization, which it is set to hear in December. In the meantime, the Court will have allowed Texas to continue enforcing the law.
Getting rid of S.B. 8 would actually be consistent with decades of strategizing by the anti-abortion movement. For some time, the movement had stressed that Roe was antidemocratic and urged the Court to return the abortion issue to the states, where it has focused on building deep support among the population.
That was painstaking, hard-earned work. But in recent years, the anti-abortion movement has somewhat abandoned legislative victories at the state level, and instead hitched its fate to the Court. Leaders of the movement now hope that the Court will give them what is politically impossible: recognition of fetal personhood and a ban on abortion everywhere. This could result in a major backlash. S.B. 8 has already damaged the Court's reputation--and contributed to its plummeting poll numbers--and the more Americans recoil at the justices' show of force, the worse off the anti-abortion movement will be.
Historically, the movement is coming full circle. Starting in the 1960s, before Roe, abortion foes relied on the courts. Some anti-abortion activists went to court seeking to be named the guardians of fetuses scheduled for abortion. Others hoped that the Supreme Court would recognize an unborn child as a person under the Fourteenth Amendment and thereby make abortion itself unconstitutional.
Roe changed the calculus, rendering the judiciary an enemy. By the '80s, the Republican Party welcomed arguments that Roe was an activist decision--that the justices had read into the Constitution something that wasn't there in order to achieve their political preferences. For many years, decrying the tyranny of the Court was a tactic that united conservatives who agreed on relatively little otherwise. Prominent anti-abortion groups argued that the Court should get out of what the late Justice Antonin Scalia called the "abortion-umpiring business" and let American voters decide for themselves.
For a time, the movement's strategy mirrored this focus on democracy. Anti-abortion leaders turned their attention to writing copycat laws that would pass in purple states and enjoy at least some popular support.
Following the confirmations of Kavanaugh and Amy Coney Barrett, states such as Texas began pushing the envelope--viewing the Court as a potential ally, no longer the obstacle they had long avoided. Conservative lawmakers could now imagine a future in which the conservative justices might green-light their more extreme laws, and maybe even put an end to abortion nationwide.
The idea that the movement wants a nationwide ban is no surprise. The anti-abortion movement views a fetus as a rights-holding person. Allowing abortion to be legal in California or New York, for abortion foes, is morally unacceptable and constitutionally wrong--all the more so because the majority of abortions occur in large, blue states.
But there is no realistic way to achieve a nationwide ban without the Supreme Court. The anti-abortion movement has already tried, and failed, to amend the federal Constitution to ban abortion. Even with the advantages offered by the Electoral College and the composition of the Senate, a federal statute criminalizing abortion seems far-fetched. But if they are willing to face the likely political fallout from overruling Roe, which would leave the issue for states to decide, the Court's conservative justices may be prepared to go further.
And that may backfire. The Court's popularity has taken a nosedive, and some of the justices have made public statements defending their institution against accusations of partisanship. The Court's response to S.B. 8 and Dobbs certainly has not helped matters. Donald Trump promised a Supreme Court that would gut abortion rights. Within a year of Barrett's arrival, he appears to have delivered. It is hard for anyone to take the Court's protestations of neutrality seriously when the justices trained their fire on Roe and let an unprecedented law such as S.B. 8 go into effect with barely a word of explanation.
By allowing abortion providers to sue, the Court will not be saving abortion rights. Instead, the justices will be taking control of the narrative once again. There is not really a way to prevent a costly backlash to the reversal of Roe. But the anti-abortion movement is seeking an outcome--the recognition of fetal personhood--that our democracy will never deliver, especially in blue states. If the movement must rely on the Court, anti-abortion activists will have to let the members of the Court's conservative supermajority dismantle Roe when and how they wish. But that shouldn't be too painful--after all, they are not likely to wait for long.