Natalie Gomez-Velez, professor at City University of New York School of Law, discusses the oral arguments before the US Supreme Court on Texas’ new abortion law and considers their implications for the constitutional system…
Last week’s US Supreme Court arguments in Whole Women’s Health v. Jackson and US v. Texas challenging the Texas abortion ban revealed a startling vulnerability in the US system of federalism and constitutional supremacy. They laid bare that a state’s flagrantly unconstitutional six-week abortion ban, when structured to avoid effective judicial review, can flummox the Supreme Court while allowing the law to remain in effect for months. Such a state law scheme threatens not only constitutionally protected abortion rights, but potentially any constitutional right disfavored by any state legislature. The Justices know this. The Court must act now to stop this law and others like it.
The November 1, 2021 arguments focused not on the Texas ban’s unconstitutionality, but on whether and how abortion providers and the United States could sue to stop the law. Several Justices acknowledged that S.B. 8’s unprecedented structure was designed specifically to avoid effective judicial review. Their questions revealed deep skepticism about the law’s scheme to evade review of its unconstitutional six-week abortion ban. Such questions came from across the Court’s ideological spectrum, including Justices Kavanaugh and Barrett (believed to favor narrowing or overturning abortion rights well-settled by almost fifty years of jurisprudence since Roe v. Wade), and Justices Sotomayor and Kagan (who consider the abortion right under Roe and its progeny settled precedent). Indeed, virtually all of the Justices’ questions indicated that they see the Texas law’s fundamental structural problems. That should predict a ruling that one or both challenges to the law will go forward and perhaps succeed in striking down S.B. 8. The question is, why is the Court permitting the law to remain in effect while considering these questions, especially when it knows that the law fundamentally undermines the supremacy of the Court’s own decisions.
The Justices’ misgivings stem from S.B. 8’s unprecedented design to evade judicial review of its clearly unconstitutional ban–a design that could be used to attack other constitutional rights. There is no dispute that S.B. 8’s six-week abortion ban is unconstitutional under current law. Yet Texas legislated private enforcement to thwart judicial review of this question by exploiting loopholes in existing “state action” state sovereign immunity doctrines that determine who is authorized to challenge the law and who may be sued to invalidate it. Unlike most state abortion restrictions S.B. 8 is enforceable indirectly “through civil lawsuits by private citizens against anyone who performs, aids and abets or intends to participate in a prohibited abortion.”
The law authorizes any private party to sue anyone who assists a banned abortion, win damages of not less than $10,000 for each abortion, and collect costs and attorney’s fees. It allows virtually no affirmative defenses, affords no preclusive effect when defendants win, and denies costs to those wrongly targeted. This “bounty hunter” structure is designed specifically to shield the law from pre-enforcement review–or any effective sweeping judicial review–while chilling abortion access with threats of ruinous litigation carrying hefty statutory damages. In short, S.B. 8 is designed to impede abortion access through threats of costly ruinous litigation against anyone deemed to provide any kind of assistance, while limiting avenues to challenge the law and excising state actors who may be sued to invalidate the law.
The implications of S.B. 8’s design extend well beyond abortion. That design, if replicated, threatens the entire constitutional structure of federal supremacy and judicial review. Justice Kagan went to the heart of the matter during the Whole Women’s Health argument, noting:
[T]he entire point of this law, its purpose and its effect, is to find the chink in the armor of Ex parte Young, [which] set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws…[T]he fact that after, all these many years, some geniuses came up with a way to evade the commands of that decision, [and] the even broader principle that states are not to nullify federal constitutional rights and to say, oh, we’ve never seen this before, so we can’t do anything about it … I just don’t understand the argument.
Justices Kavanaugh and Kagan pointed out that S.B. 8’s structure could serve as a model to eviscerate other constitutional rights. Kavanaugh noted that S.B. 8’s structure could “easily become the model for suppression of other constitutional rights … And it could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights if this position is accepted here.” Responding to Texas’s argument that a congressional remedy is needed to remedy the problem, Justice Kagan added “isn’t the point of a right that you don’t have to ask Congress? Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?”
There appeared to be some differences in the Justices’ willingness to permit the US’s case to proceed as compared with the case filed by private plaintiffs. Solicitor General Elizabeth Prelogar made strong, compelling arguments about the need to protect the supremacy of federal constitutional law. However, some Justices expressed concern about permitting the United States to sue a state in equity, even for this purpose. For example, Chief Justice Roberts pressed Prelogar as to what limiting principle could be applied to broad equity suits by the federal government against the states. Prelogar responded that “the limiting principle arises from the way this statute operates to try to deprive any meaningful review anywhere” and again emphasized that such a suit “to protect the supremacy of federal law” would not open the floodgates for challenges involving ordinary state law private rights of action.
In both arguments, several Justices seemed to acknowledge that state law schemes like S.B. 8, if allowed, threaten other constitutional rights and severely undermine the constitutional order. The recognition of that threat begs the question why the Court has yet to enjoin S.B. 8. It recalls the Court’s disconcerting rulings on September 1, 2021 and October 22, 2021, declining to halt S.B. 8 pending resolution of the novel procedural questions presented by the law’s design. Despite expedited consideration of these cases, the Court’s continued failure to enjoin operation of a clearly unconstitutional law that daily causes irreparable harm significantly undermines fundamentals of the US constitutional structure, including the protection of individual rights, the Supremacy Clause, federalism, and judicial review. This is deeply problematic.
The Court’s unwillingness to halt this unconstitutional law while reviewing its bizarre, evasive scheme undermines the rule of law as well as the Court’s own legitimacy. As Justice Sotomayor correctly noted, “every day the Court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole.” Even Chief Justice Roberts, dissenting from the Court’s earlier refusal to halt S.B. 8, noted “[t]he statutory scheme before the Court is not only unusual, but unprecedented,” because “[t]he legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large,” with the “desired consequence appear[ing] to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.” Yet the Court still has yet to enjoin S.B. 8.
The record related to these cases is replete with examples of the irreparable harm suffered by women, doctors, and others affected by S.B. 8. In the days and weeks since S.B. 8 became law, the harmful effects of its abortion ban and nightmarish vigilante enforcement structure have become increasingly evident. For example, as the Justice Department’s brief notes, S.B. 8 has blocked nearly all abortions that otherwise would have been performed in the state. Many seeking abortion care have traveled, often hundreds of miles, to other states for care, in some cases overwhelming “providers in Oklahoma, Kansas, Colorado, New Mexico, and as far away as Nevada.” This travel, along with waiting periods and other restrictions, delay abortion care, inviting medical complications and compounding anguish.
In addition, S.B. 8’s bounty hunter provision not only works to diminish abortion access in Texas, but it also provokes harassment and profit-seeking well beyond Texas. As one report explains:
S.B. 8 invites lawsuits against anyone who performs or “abets” an abortion. That could mean an array of people and groups, including clinics and their employees, from doctors to receptionists; friends, relatives or strangers who pay for an abortion, including people who donate to or administer abortion funds; insurers that approve a claim; ride-share drivers who drive a patient to a clinic; and anyone who shares information about abortion options.
In short, S.B. 8’s harmful effects extend well beyond Texas and impair far more than just abortion access. The questions raised during oral argument only strengthen the case for halting S.B. 8.
To the extent that the Court raised concerns about crafting an appropriate remedy, such concerns are addressed substantially in the District Court decisions. For example, US District Judge Robert Pittman’s decision in US v. Texas provided a careful analysis addressing the US’s standing to sue and the likelihood of success of its claims that S.B. 8 is unconstitutional, preempted by federal law, and violates intergovernmental immunity. As Solicitor General Prelogar noted at argument, Judge Pittman’s decision offers a workable remedy. It “enjoined Texas from implementing S.B. 8 and enforcing it in any manner, and … identif[ied] all the various stages of the S.B. 8 enforcement proceedings where that injunction would  operate to stop the threat of those enforcement actions that have chilled the exercise of the right.”
In closing, Solicitor General Prelogar reminded the Court to:
think about the startling implications of Texas’s argument here … Texas’s position is that no one can sue, not the women whose rights are most directly affected, not the providers who have been chilled in being able to provide those women with care, and not the United States in this suit. They say that federal courts just have no authority under existing law to provide any mechanism to redress that harm. And if that is true, if a state can just take this simple mechanism of taking its enforcement authority and giving it to the general public backed up with a bounty of $10,000 or $1 million, if they can do that then no constitutional right is safe. No constitutional decision from this Court is safe.”
These arguments are compelling and implicate not only constitutionally protected abortion rights, but the very constitutional structure. The Justices’ questions during oral argument seem to signal that the Court will permit at least one, if not both challenges to proceed.
Yet the Court’s failure to enjoin S.B. 8 while the cases are pending remains alarming. Permitting flagrantly unconstitutional action to go unchecked by cynical state legislative sleight of hand threatens much more than the constitutional right to abortion. It threatens the very character of US constitutional governance and the rule of law. It also threatens the Supreme Court’s legitimacy, which is already in doubt.
Natalie Gomez-Velez is a professor of law at City University of New York School of Law and the director of the Center on Latinx Rights and Equality.
Suggested citation: Natalie Gomez-Velez, SCOTUS Skepticism and the Texas Abortion Law, JURIST – Academic Commentary, November 8, 2021, https://www.jurist.org/commentary/2021/11/natalie-gomez-velez-supreme-court-abortion-ban-arguments/.
This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at [email protected]
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