After weeks of waiting, the Supreme Court this morning finally allowed abortion providers' challenge against Texas's functional ban on abortion, S.B. 8, to go forward. But the win for abortion providers is not the sweeping victory that seemed likely when the Court heard oral argument on S.B. 8 in November--and even if legal abortions resume in Texas, any reprieve probably won't last for long, because of another major abortion case, Dobbs v. Jackson Women's Health Organization, that could gut abortion rights when the Court issues a decision next year. More immediately, the Court's decision today almost invites other states to imitate Texas's approach, creating the possibility for more constitutional chaos--and not just on the issue of abortion.
Though S.B. 8 came into effect just this fall, it is in some ways already a relic from an earlier era of the nation's abortion wars--one in which conservative states worried about major losses in the Supreme Court. For this reason, the law is crafty, delegating enforcement to any private citizen who wants to file a civil suit, as opposed to the state criminalizing the procedure outright. Texas is no stranger to major losses in abortion cases and has clearly learned its lesson. In 2016, the state faced defeat in Whole Woman's Health v. Hellerstedt and had to pay millions of dollars of attorneys' fees to the pro-abortion-rights Center for Reproductive Rights. Conservative lawmakers did not want to repeat that experience but also wanted to keep up with other red states that had introduced sweeping bans on abortion after six weeks. S.B. 8 was the result: a law that could nullify abortion rights while insulating the state from suit.
Texas lawmakers thought they had found a loophole in the rules governing constitutional challenges to state laws. There are limits on when states can be sued in federal court, but in the early 20th century, in a case called Ex parte Young, the Court held that people could sue state officials in federal court for enforcing unconstitutional laws. Texas claimed that it had found a way around this rule: If no state official enforced S.B. 8, there would be no way to test it in federal court. Yes, there could be state cases, but those would not stop all suits against abortion providers and aiders and abettors--doctors would have to raise a constitutional defense each time they were sued, rather than settling the matter once and for all. In the meantime, providers would have to put out constant fires. Many would refuse to perform abortions after six weeks at all.
After letting S.B. 8 go into effect, the Supreme Court seemed to have a change of heart. The justices put two challenges--one brought by abortion providers, another by the Biden Justice Department--on a fast track, meaning the cases would get heard and decided much sooner than would otherwise have been the case. Then, today, the Court seemed to hand providers a win--the justices voted 8-1 that the suit against some state licensing officials could go forward in federal court. The Court zeroed in on specific licensing officials who are charged with enforcing other laws that regulate abortion in Texas. These officials, the Court reasoned, might enforce S.B. 8, and providers could haul them into federal court. At the same time, the Court dismissed the separate appeal from the Justice Department. The United States had challenged the Texas law because the state had prevented anyone else from doing so. Because the Court allowed the providers' suit to move forward, there was no need to resolve the thorny questions at issue in the Justice Department's suit.
So far, so good for abortion providers. But look a little harder, and today's ruling seems like less of a victory for abortion rights--or, for that matter, for those concerned about state efforts to nullify other constitutional rights. First, the Court did not allow providers to sue anyone other than the state licensing officials--including the attorney general or the state clerks who docket cases. Taking suits against clerks off the table will make it hard to block every S.B. 8 suit from going forward. Providers will be in and out of court--and will have to rely on state cases. A clean solution that would end S.B. 8 once and for all may not be possible.
With its decision, the Court has handed states looking to nullify other constitutional rights a road map: Write a law like S.B. 8 with a few tweaks, and the Court's majority may sign off on it. The only question will be whether Democrats as well as Republicans take up the Court's veiled invitation to play constitutional hardball.
For women in Texas, nothing will change immediately--S.B. 8 will remain in effect in the short term. Even if a win is down the line--the lower courts will likely hold that Texas's law violates abortion rights, as Roe v. Wade is, after all, still the governing precedent--abortion providers in the state may be reluctant to resume services. The drafters of S.B. 8 thought of everything: The law has a provision stating that doctors can be sued for abortions performed after a lower court has blocked the law from being enforced if the Supreme Court later holds that there is no constitutional right to an abortion.
The Court's conservative supermajority seems poised to hold that there is no right to an abortion in Texas--or anywhere else. When the Court heard oral argument in Dobbs last week, all of the Court's conservatives appeared to think that abortion-rights jurisprudence is fatally flawed. Chief Justice John Roberts reached for some kind of middle-ground solution--holding that states could pass some laws on abortion before viability, the point at which survival is possible outside the womb. None of his conservative colleagues looked particularly interested in joining him. Most of the Court's members seemed to think that there is no constitutional right to an abortion at all--and seemed to be ready to say so.
Today's decision is a win not for abortion providers but for constitutional chaos. It will encourage states, conservative and progressive alike, to see how much they can bypass judicial interpretation of constitutional rights. The decision will lead some to think that abortion rights will be restored in Texas while the Court plans to hold that those rights never existed in the first place.
During the Dobbs argument, the Court gave a clear impression of being indifferent to the political consequences of its actions. This conservative majority looks ready to transform the Constitution and its interpretation in radical, perhaps unpopular ways, the consequences be damned.
Today's decision only reinforced that impression. Allowing states to perfect the S.B. 8 model will encourage constitutional anarchy. The same might be true of reversing Roe, but the Court's conservatives don't seem to mind.