September 18, 2021

T-Break

Let'S Talk Law

Supreme Court Ruling & the Future of Roe

Is the future indeed theirs? It’s more possible than ever.
Photo: Sergio Flores/Getty Images

The U.S. Supreme Court’s order refusing a petition to put a hold on Texas’s blatantly unconstitutional ban on abortions performed after six weeks of pregnancy is sowing enormous confusion in and beyond the Lone Star State thanks to its terse and obscure reasoning and its focus on arcane procedural matters. Here’s a guide to how Texas’s abortion ban works, its “vigilante” enforcement mechanism, and what’s next in the legal battle over reproductive rights.

In many respects, SB 8 (as it was known in the Republican-controlled legislature that passed it in May) is a standard “heartbeat bill.” These bills typically seek to ban abortion after six weeks of pregnancy, the point when anti-abortion activists claim a fetal heartbeat is detectable, which is before many women know they are pregnant. Eight states other than Texas (Georgia, Iowa, Kentucky, Mississippi, North Dakota, Ohio, South Carolina, and Tennessee) have enacted such laws, though all the rest have been blocked from implementation by federal or state courts. The Texas version of the “heartbeat bill” is also unusually extreme in that it does not include exceptions for pregnancies resulting from rape or incest.

“Heartbeat bills” like that of Texas are obviously unconstitutional from the point of view of existing Supreme Court precedents (laid out first in 1973’s Roe v. Wade and modified but confirmed in 1992’s Planned Parenthood v. Casey) protecting the right of women to choose abortion prior to fetal viability (typically adjudged at about 24 weeks of pregnancy). According to one estimate, at least 85 percent of the abortions recently performed in Texas occurred after the six-week mark established by SB 8.

It’s not the main body of SB 8 that made it the object of a potentially revolutionary Supreme Court order but rather its enforcement mechanism, which was overtly designed to limit opportunities for preemptive judicial actions like the one Texas abortion clinics were seeking just before the law took effect on September 1. As Vox’s Ian Millhiser explains, the doctrine of sovereign immunity prevents lawsuits against state governments when they enact unconstitutional laws, so typically litigants sue the state officials who try to enforce them instead:

[I]f Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.

Part of what makes SB 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through … private civil actions.”

SB 8 essentially establishes a system of vigilante justice. And it’s harsh justice: The law not only proscribes abortions, but exposes to civil lawsuits anyone “abetting” such an abortion in any way (which could include providing information about abortion services, or simply driving someone to a clinic). And, perversely, it awards $10,000 “bonuses” to anyone prevailing in such a suit, presumably to be paid by the defendant along with court costs and attorneys’ fees and whatever civil penalty a judge chooses to impose. Anyone can bring such a lawsuit, in their own county, which will create some aggressive forum-shopping by anti-abortion activists. As you can imagine, most if not all providers will simply drown under the costs and risks the system is intended to create. It’s outrageous, as the New York Times explained when the law was under discussion in the legislature:

Critics say the Texas law amounts to a kind of hack of the legal system. In an open letter this spring, more than 370 Texas lawyers, including Professor [Stephen] Vladeck, said a central flaw was its attempt to confer legal standing on abortion opponents who were not themselves injured. They called the law an “unprecedented abuse of civil litigation,” and said it could “have a destabilizing impact on the state’s legal infrastructure.”

The weird enforcement mechanism is generally being attributed to lawyers and legislators working with homegrown Texas anti-abortion advocate Mark Lee Dickson. A church pastor and longtime clinic protester, and now head of Right to Life East Texas, Dickson is an anti-abortion extremist (he considers all abortions at any stage of pregnancy for any reason murder) who developed and promoted the idea of Texas communities designating themselves “sanctuaries for the unborn” and empowering private citizens to harass providers — including even pharmacies selling Plan B contraceptives, which extremists consider “abortifacients” — with lawsuits.

One admiring colleague called the 34-year-old Dickson a “Johnny Appleseed going from town to town” mobilizing religious conservatives and anti-feminists to adopt his devious plan. The idea is reminiscent of the White Citizens’ Council model of fighting desegregation during the Civil Rights era: Once defeated in the courts, white supremacists switched to nonofficial harassment of civil rights workers, threats of terrorism, and essentially (white) community-based civil disobedience. A Dickson-inspired ordinance in the city of Lubbock survived a legal challenge as a Trump-appointed federal judge ruled he had no power to enjoin private citizens. SB 8 essentially took Dickson’s strategy statewide.

The key difference between the White Citizens’ Councils’ rearguard action against civil rights and the Texas strategy, of course, is that the wind is blowing in the opposite direction in terms of the federal judiciary. With the effective date of SB 8 growing nigh, abortion providers and advocates pursued and secured a hold on implementation from a federal district court judge who scheduled an August 30 hearing to hear arguments about the law’s constitutionality. Just before this hearing, a three-judge panel of the Fifth Circuit Court of Appeals — the nation’s most conservative judicial circuit — took the unusual step of canceling the lower court’s hearing and removing all obstacles short of a Supreme Court intervention that stood in the way to implementation of SB 8.

This made a petition to Supreme Court to slow down the train the only available option for opponents of the law, even as clinics stopped making appointments for potentially illegal procedures and confusion pervaded both medical and legal circles.

At first, nothing. For nearly 24 hours after the law became effective, the Court remained silent. We now know that a majority had probably already decided to smile upon the law, while four dissenting justices (Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan) hastily wrote dissents of varying heat.

Technically, all the five-justice majority (Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) did was to turn down an emergency petition to stop the further implementation of SB 8 as part of the Court’s “shadow docket” of emergency appeals considered between terms. There were limited briefs filed and no oral arguments, and the order was short and unsigned. Its key finding (in the case now known as Whole Woman’s Health v. Jackson) was that the “application [for intervention] presents complex and novel antecedent procedural questions on which they [the petitioners] have not carried their burden.” In other words, the majority couldn’t (or wouldn’t) figure out how to unravel Dickson’s enforcement scheme in a way that made an intervention feasible, and would stand pat until the petitioner figured it out for them. The order refused to provide any consideration of the constitutionality of the Texas law, but it was obviously the most important part of the broader landscape of the case.

In his own dissent, Chief Justice Roberts made the obvious and very limited argument that given the strongly established constitutional rights at issue in the case, the Court should have accepted the petition and stopped implementation of the law while the procedural tangle was sorted out: “I would grant preliminary relief to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”

The Court liberals who joined Roberts issued three dissents of their own that went much further, challenging the majority’s motives and indeed its honesty and integrity. Breyer emphasized the Court’s responsibility to stop invasions of constitutional rights regardless of the procedural difficulty of doing so. Justice Sotomayor, whose dissent called the order “stunning,” called out the majority for both evasion of duty and indifference to the affected parties:

Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention … Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.

And Justice Kagan ripped the majority for its abuse of the “shadow docket” and the devious way it went about confirming Texas’s devious law:

Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them — in clear, and indeed undisputed, conflict with Roe and Casey

That’s the $64,000 question. But the broader context suggests that the Court majority — with the chief justice quite possibly onboard — is ready to reverse or significantly modify the constitutional precedents protecting pre-viability abortions when it reviews Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s new law banning abortions after 15 weeks of pregnancy, which is on the Court’s docket for this fall. The Texas law may have simply presented the Court with an opportunity to jump the gun in a complicated and hard-to-attack way, allegedly without disturbing precedents, and five justices took it.

If you take seriously the idea that the majority is simply waiting for someone in particular to enjoin before looking at the Texas law’s constitutionality, then that day could arrive soon once vigilantes begin suing abortion providers and “abetters” and state judges begin making rulings and awards. But the majority could continue to throw up its hands, denying responsibility for the practical elimination of the right to choose abortion in Texas.

It’s unclear, and the answer largely depends on how you answer the question raised above about the Supreme Court majority’s intentions. If the Court lets the Texas law stand, then other states with Republican legislatures and governors will race to enact identical laws. In that case, Roe and Casey will have been reversed in the sense that there will no longer exist a federal constitutional right to an abortion that overrides state laws. The coup de grace would likely fall when a decision is made in Dobbs, probably next spring, with the success of the Texas strategy probably radicalizing the Court’s conservatives by achieving their anti-abortion goals in two steps rather than one.

In the meantime, America’s abortion providers and advocates — and its women — will live under the threat of a return to the patriarchal laws of the distant past, albeit in a twilight legal and political war in which the laws governing abortion are constantly in flux and never entirely secure. Some Democratic-controlled states will likely move to consolidate state-guaranteed abortion rights, and Democrats will almost certainly make this a national issue for both congressional and state candidates, hoping to arouse a pro-choice majority that has long been outgunned in enthusiasm and audacity by a minority that regards legalized abortion as genocide and/or a threat to the traditional family.

That anti-abortion minority is being quiet for now. Though you have to figure there is a great deal of excitement behind closed doors in those circles, conservatives generally are echoing the Supreme Court majority’s nothing-to-see-here treatment of its order as a complicated procedural matter rather than a judicial counterrevolution. But this entire saga reveals not only the audacity of conservative judges and politicians who have been implicitly promising the anti-abortion “base” exactly this outcome for decades, but the anti-abortion movement’s true extremism after so many years of crocodile tears over late-term abortions. If they can get away with banning abortions after just six weeks of pregnancy, can laws recognizing fetal personhood be far behind? We will soon know.