Constitutional Law Prof Blog

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Supreme Court Allows Texas Anti-Abortion Law To Go Into Effect

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court allowed Texas's SB8, the highly unusual and severely restrictive anti-abortion law that is specifically designed to evade judicial scrutiny, to go into effect. The Court issued a ruling last night that explained its decision. The text of SB8 is here.

The Court's ruling specifically says that it's not a decision on the constitutionality of Texas's law. Instead, the majority writes that there are too many questions about the technical aspects of the case (given the highly unusual way the law works), and suggests that it's the wrong case, at the wrong time, against the wrong parties.

But as a practical matter the ruling halts abortions in the state where a physician detects a fetal heartbeat (that is, about 85 percent of all abortions) unless and until a plaintiff can bring a successful challenge. And it all but foretells the demise of Roe v. Wade. (Even if the Court doesn't ultimately overturn Roe, this case gives states a roadmap for enacting legislation that eviscerates it.)

All this without full briefing and argument, on the "shadow docket."

The case, Whole Women's Health v. Jackson, tests the constitutionality of Texas's SB8. SB8 requires abortion providers to test for a fetal heartbeat before performing an abortion, and prohibits persons from performing an abortion when they detect a fetal heartbeat. It also prohibits "aiding and abetting" (including funding, even through insurance) of a post-fetal-heartbeat abortion. (Fetal heartbeat usually occurs around six weeks. That's well before the point of viability, and even before many women know they're pregnant. All that's to say that the restriction plainly violates Roe and Casey (and every other post-Roe ruling of the Court that prohibits a state from banning abortion pre-viability).)

But there's a twist. SB8 specifically prohibits state officers from enforcing the law. Instead, it authorizing private individuals to file private suits in state court against any person who provides an abortion in violation of the law. Upon a successful suit, the law requires state courts to enjoin a defendant from providing future abortions in violation of the law, and authorizes at least $10,000 in damages against a person who provides an abortion in violation of the law . . . for each abortion.

The law forbids state courts from awarding costs and attorney fees to successful defendants (which means that they must bear their own costs, even against frivolous and unsuccessful claims). It also says that a defendant cannot defend an action unless the Supreme Court rules that a defendant has third-party standing to assert the right to abortion on behalf of its patients (which it currently has, but that could change), upon a showing that the law imposes an undue burden on the right to abortion (the Casey standard that exists now, but also could (and is likely to) change).

All this means that private individuals, not the state, enforce the law. And at a very high cost. So high, in fact, that abortion providers have stopped providing post-heartbeat abortions, merely out of fear of incurring the costs of defending private lawsuits, even if those end up overturned.

It also means that the law is tricky to test, except as a defense to a private lawsuit (which, again, comes at a prohibitively high cost to abortion providers), and even then not at all a sure thing.

That's all by design. The Texas legislature specifically designed SB8 to effectively halt post-heartbeat abortions in the state and to evade federal judicial review.

And yesterday's opinion shows that it worked. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett wrote that there were too many questions about the federal court's ability to hear the case by an abortion provider against a private citizen and a state judge who might enforce the law through a private lawsuit. The Court said that it's not clear that the judge will enforce the law in a way "that might permit our intervention," that the Court can issue an injunction against a state judge to halt enforcement of the law, and that the private-citizen defendant will seek to enforce the law by filing a civil action against the plaintiff. The Court's answer: let the law go into effect until a plaintiff can successfully challenge it. (Again, it's not at all clear that a plaintiff could ever challenge it, given the highly unusual way the law works.)

Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan each dissented, and joined each other, except that Chief Justice Roberts didn't join the dissents of the other three. Chief Justice Roberts "would grant preliminary relief to preserve the status quo ante." Justice Breyer argued that "[t]he very bringing into effect of Texas's law may well threaten the applicants with imminent and serious harm" sufficient to allow the Court to grant relief. Justice Sotomayor argued that the Court "silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedent." "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." Justice Kagan argued that the Court improperly took this extraordinary step without full briefing and argument, on the shadow docket.