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An alarming new Supreme Court case could unravel Roe v Wade this evening

In May, Texas Governor Greg Abbott (R) signed state law effectively banning abortion after the sixth week of pregnancy – earlier than many people know they are pregnant. This law violates Planned Parenthood v. Casey (1992), which "protects the right of women to choose an abortion from profitability and to have it without undue state interference". But it will still go into effect on Wednesday unless a court blocks it.

In a way, the struggle over the Texan anti-abortion law known as SB 8 is known. A Republican-led state passed abortion restrictions that violate existing Supreme Court precedents. Pregnant women in the state are losing access to reproductive health care – in this case, many clinics drastically reduced abortions before SB 8 went into effect. In the meantime, she and the rest of us will have to wait and see if an increasingly right-wing judiciary enforces their earlier decisions or continues to tamper with this precedent.

The anti-abortion law, which is now in a case called Whole Woman’s Health v. Jackson tried in the Supreme Court offers a maze of complex procedural complexes that are rare in even the most complex litigation. The law appears to have been designed to purposely thwart lawsuits challenging its constitutionality. And Texas, with the help of a right-wing appeals court, has so far rigged the process to prevent any judge from examining whether SB 8 is lawful.

The stakes in this case are astronomical. Six weeks after starting a pregnancy is often very soon after a pregnant person missed their first menstrual period. So you may not even realize you are pregnant until it's too late. According to the abortion providers who want to block SB 8, at least 85 percent of abortions in Texas occur after the sixth week of pregnancy. If the Supreme Court does not intervene before Wednesday, Texas law will go into effect and these abortions will become illegal.

Thousands of protesters demonstrated on May 29th in response to the SB 8, Texas anti-abortion law.

Sergio Flores / Getty Images

SB 8 is imposing such draconian sanctions on abortion providers that all 11 Planned Parenthood clinics in Texas stopped planning abortions after the sixth week of pregnancy in mid-August, even though SB 8 is not yet in effect. Some other clinics in Texas plan to continue their normal services through Wednesday but will almost certainly stop once SB 8 goes into effect.

And the commitment at Whole Woman’s Health goes far beyond abortion. SB 8 is designed to prevent judicial review before the law goes into effect. If the Supreme Court adopts this tactic, other states are likely to copy them, potentially allowing states to enact all kinds of unconstitutional practices that can only be challenged after an unconstitutional law has entered into force.

Finally, it is worth noting that this case occurs on the "shadow file of the Supreme Court", a mix of urgency motions and other expedited cases that are not fully informed or verbally argued. In the past, the court was reluctant to make important landmark decisions on its shadow file because of the risk that judges could make an erroneous decision without fully understanding its consequences.

Since a change in the Court's approach to a contentious issue such as abortion in a shadow trial would mean an extraordinary departure from normal Court procedures, it is possible that a majority of judges could decide to block SB 8, at least temporarily. But this court has a conservative majority of 6: 3 who are very opposed to abortion law, so the court is at least as likely to let the law go into effect and effectively override key points Casey and Roe made against Wade.

So the question in Whole Woman’s Health is not just whether abortions are still possible in Texas. It is a question of whether the usual rules of procedure that are supposed to regulate all legal disputes are still being followed by the highest court in the country.

SB 8 is designed to prevent court review

SB 8 is a really bizarre law.

As it is written, a Texan who objects to SB 8 may have no one to sue to prevent it from going into effect.

For one, abortion claimants cannot sue their state directly. The usual rule is that if someone sues a state to block a state law, they cannot sue the state directly. States benefit from a doctrine called “Sovereign Immunity,” which usually prevents legal action against the state itself.

But neither can they really go the same way as most citizens who want to stop laws. This path is based on Ex parte Young (1908), a ruling in which the Supreme Court found that anyone who raises a constitutional challenge to a state law can sue the enforcement officer and obtain an injunction to enforce that law It prevents officials from enforcing it. For example, if Texas passed law requiring the state medical association to revoke medical licenses from all abortion providers, a plaintiff could sue the medical association. If a state passed law requiring state police to block abortion clinics, a plaintiff could sue the state's police chief.

Part of what makes SB 8 such a bizarre law is that it doesn't allow any state official to enforce it. Rather, the law provides that it “exclusively through. . . private civil actions ”.

Under the law, "anyone who is not an official or employee of any state or local government agency in that state" can bring a private lawsuit against anyone who performs an abortion after six weeks of gestation or who "knowingly" does something that supports or facilitates the performance or induction of an abortion. ”Claimants who succeed in such proceedings will receive at least US $ 10,000 from the defendant.

SB 8, in other words, seeks to put an end to Young by preventing state officials from directly enforcing the law. Young reiterated that a plaintiff can sue a state official who is charged with enforcing a state law for blocking enforcement of that law. But unless a state official is tasked with enforcing the law, there is no one to be sued to block the law. Checkmate, libs.

It's worth noting that this tactic can't stop anyone from ever questioning SB 8. When the law goes into effect, abortion providers (plus anyone “favoring” an abortion – an indefinite term not defined in the law) will undoubtedly be bombarded with legal proceedings in which the new state law-approved bounty of US $ 10,000 Dollar is required. These defendants can then argue in court that they do not have to pay this bounty because it is unconstitutional.

But they will do so on the threat of having to pay such a bounty to anyone who files a lawsuit against them. Even if abortion providers prevail in all of these proceedings, they will also have to pay to defend their attorneys in court. And the lawsuits demanding a SB 8 bounty are likely to be numerous and endless, as literally "anyone" who is not a Texas state official can file such a lawsuit.

So once the law comes into effect, it will be too late. Unless abortion providers can obtain a court order to block SB 8 before it goes into effect, those providers are likely to be crushed by a wave of legal proceedings that they cannot afford to go through.

Where does the Texan anti-abortion law stand now?

A coalition of abortion providers, advocacy groups and individuals have filed a lawsuit against SB 8 and are trying to block it before it goes into effect. The lawsuit cites a hodgepodge of defendants, including Texas Attorney General Ken Paxton (R), who has some authority to take enforcement action against abortion providers after a court found that such provider violated SB 8.

The lawsuit also names a Texas judge and a Texas court clerk, based on the theory that private claims filed under SB 8 will be heard by Texas courts and therefore court officials are the correct defendants after Young. Although lawsuits against judges are usually denied, the Supreme Court in the Supreme Court of Virginia v. Consumers Union of United States (1980) found that judges can sometimes be sued when there is no other way to challenge a state law.

And yet, although a federal district court has ruled that Whole Woman’s Health plaintiffs can sue Texas judges to block SB 8, no court has reached the crux of the matter at the heart of this case: whether SB 8 is unconstitutional.

Supreme Court Justices Amy Coney Barrett, Neil Gorsuch, Elena Kagan and Brett Kavanaugh attend President Biden's inauguration. All but Kagan were Trump agents.

Jonathan Ernst / Getty Images

The reason is dizzyingly complex and difficult to summarize. A somewhat oversimplified explanation is that Texas shortly after the district court ruled that the Whole Woman & # 39; s Health lawsuit against state judges could be brought before the district court ruled whether SB 8 should be blocked Right-wing US court in the US appealed appeals for the fifth circle. The Fifth Circuit then ordered the district court not to rule on this case.

The plaintiffs are now in the Supreme Court asking the judges to either let the original District Court or the Supreme Court decide this case. Perhaps the judges themselves could decide to block SB 8 – although that outcome is unlikely given the majority in the court against abortion. Alternatively, judges could overturn the fifth district order and instruct the district court to rule on the constitutionality of SB 8.

This is not how legal proceedings are supposed to work

If you are confused by this quagmire of procedural aggression, countermeasures against procedural aggression, dueling appeals, and court orders prohibiting other court orders, you should be. This is not how the judiciary should work.

Litigants who are at immediate risk of harm if a state law is not blocked should be given the opportunity to challenge that law before violating it and risking legal consequences. Appeals courts should wait for the lower courts to rule on a case before arriving at a different outcome than the lower court could reach. Doctors who offer medical care that is protected, at least for now, by decisions like Roe and Casey, shouldn't risk an endless wave of harassment from people trying to collect a bounty.

If a court does not intervene before tomorrow, SB 8 will come into effect. This means that if the judges do nothing in this case, they are effectively choosing to rewrite the nation's abortion law without receiving full briefing, hearing oral arguments, or taking more than a few days to do even just to look into the case.

Equally significant, they will bless a tactic that could undermine virtually any constitutional right. For example, imagine that New York passed SB 8-style law that allows private individuals to sue for a $ 10,000 bounty against anyone with a gun. Or imagine if Texas passed a law allowing similar lawsuits against anyone criticizing the Texas governor.

There are procedural rules for a reason. They ensure that everyone involved in the process has the opportunity to have their case heard, even if the person involved in the process does not ultimately win. They also ensure that courts do not hear arbitrary cases that could affect millions of people.

As Judge Sonia Sotomayor warned in 2020 after her court issued a number of unusual shadow litigation codes in favor of Donald Trump's administration, shadow litigations are forcing "the court to examine important legal and constitutional issues that have not yet been fully discussed in the lower courts." , with shortened timetables and no oral argument. “They also“ reverse the normal appeal process and put a thumb on the scales in favor ”of a certain party.

Perhaps most importantly, obedience to procedural norms is a sign of judicial humility. In this way judges show us that they are bound by rules, even if individual judges do not agree with the result dictated by these rules.

There is one case, Dobbs v Jackson Women's Health Organization, currently pending in court that allows Conservative judges to override Roe v Wade. This case will be fully informed and negotiated orally and a decision is expected to be made next June. If the judges want to make abortion illegal in Texas, they just have to wait a few months and get their chance through the due process of the court.

If they choose not to allow SB 8 to go into effect, the judges will send out a clear signal that they believe that the normal rules should not apply to litigants they dislike. If that happens, it will be a terrifying sign for the future of the rule of law.

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