At midnight on Wednesday, the Supreme Court put a Texas law in effect effectively prohibiting all abortions after six weeks of gestation.
Twenty-four hours later, the court issued a short, one-paragraph order explaining why this was the case – although it is an exaggeration to call the court's short and thin order a "statement". The voice in Whole Woman’s Health v. Jackson was 5-4, with Conservative Chief Justice John Roberts switching to vote with the three Liberal justices.
The implications of this arrangement are staggering. Texan law violates the rules outlined in Planned Parenthood v. Casey (1992) set a precedent which "protects the right of women to choose an abortion before it is profitable and to have it without undue state interference". The sixth week of pregnancy is so early in a pregnancy that many people don't even know they are pregnant.
At least 85 percent of abortions in Texas occur after the sixth week of pregnancy, according to the abortion providers who have blocked Texas Law SB 8. All of these abortions are now illegal in the state.
But the implications of the court's decision in Whole Woman’s Health go further.
SB 8 is based on a highly unusual enforcement mechanism. No state official is authorized to enforce the law. Instead, the law allows "anyone, other than an official or employee of a state or local government agency in that state" to bring a lawsuit against an abortion provider or anyone who "assists in performing or arranging an abortion." A plaintiff who is successful in any such proceeding is entitled to a bounty of at least $ 10,000 paid by the person he is suing.
As Judge Sonia Sotomayor stated in one of four dissenting judges' opinions, Texas lawmakers "developed this scheme because federal constitutional challenges against state law are usually directed against state officials responsible for enforcing the law." So unless a state official can enforce the law, it's unclear whether anyone can be sued for blocking it.
The Supreme Court order, which the five most conservative judges have joined, effectively blesses this method of circumventing judicial review.
But if Texas can prevent a court order blocking its anti-abortion law by delegating enforcement to private bounty hunters, so can any other state. In fact, nothing in the court's order prevents another state from enacting a law prohibiting all abortions – provided the law is enforced through SB 8-style private suits.
Some states, including Florida, are already considering legislation similar to SB 8.
NEW: Florida Senate President Wilton Simpson tells me the Florida Legislature will be considering a law to abort heartbeat like Texas in this upcoming session.
"We're already working on that."
More tonight on @WFLA at 4/5 / 6https: //t.co/qBaRRHRCUm
– Evan Donovan (@EvanDonovan) September 2, 2021
To allow a law against the decision of Planned Parenthood v. Casey of the 1992 Supreme Court violating the constitutional right to abortion is de facto dead. For the first time since the Roe v. Wade in 1973 states now have the power to ban abortion.
While it is theoretically possible that the court could reverse course and reject SB 8 in subsequent litigation, the type of judges who enact such a law is extremely unlikely to be the case. And the court is already planning to hear a case in his next term, Dobbs v Jackson Women's Health Organization, with which it can expressly override Roe.
The right to abortion was killed in a one-paragraph arrangement in a case that arose on the "shadow file of the Supreme Court," a mixture of urgency motions and other decisions that are dealt with only superficially with no oral argument. The judges took action after examining the case for less than three days.
In other words, Whole Woman’s Health is a fundamental change in the court’s approach to not only abortion law but all other litigation.
The Court has now signaled that it will allow states to pass laws deliberately designed to prevent judicial review, at least if the majority of the Court agrees with the law's aims. And it passed down one of the most monumental decisions of our time – a decision that Roe v. Wade effectively overturned – in an order of shadows that practically offers no justification.
Texas designed SB 8 to prevent judicial review
The reason SB 8 can only be enforced through private lawsuits from individuals who are not employed in the state of Texas is because this structure makes it very difficult to challenge the law in federal court.
Under a doctrine known as “Sovereign Immunity,” private parties cannot usually sue states directly. In Ex Parte Young (1908), however, the Supreme Court ruled that a private party wishing to block a state law could sue the state official responsible for enforcing that law. For example, if Texas had passed a law allowing its attorney general to prosecute abortion providers, an abortion provider could sue the attorney general in federal court for an injunction blocking that law.
But SB 8 states that it should be enforced "exclusively through … private civil suits". State officials and employees are expressly prohibited from enforcing the law. So it's not at all clear who the appropriate defendant is in a federal trial trying to block SB 8.
It's worth noting that even after the Supreme Court ruling effectively advocating this method of circumventing judicial review, abortion providers still have an opportunity to challenge state law. You can violate it, wait for someone to sue you, and then argue in that lawsuit that SB 8 is unconstitutional.
But here's the catch: Under SB 8, "anyone" except a government employee can file a lawsuit against an abortion provider. This lawsuit can be filed in any number of different Texas state courts, including litigation in the same district as the plaintiff (provided the plaintiff lives in Texas).
That means anyone suspected of having an abortion after the sixth week of pregnancy can be dragged to court anytime, anywhere in the state, and potentially by hundreds or even thousands of different litigants. The abortion provider must then hire an attorney and defend themselves against all of these lawsuits. And if he loses just one, he must pay a bounty of "no less than $ 10,000 for every abortion the accused performed or initiated in violation of this subsection."
It is worth emphasizing the words “no less than”. A judge with particularly strong anti-abortion views could award a bounty of $ 20,000 or $ 50,000 or $ 18 million.
The law also subjects anyone who has “favored” an abortion after the sixth week of pregnancy to similar penalties – a term that is not defined in law but could be construed as endangering parties with extremely loose ties to an abortion clinic. As NYU School of Law professor Melissa Murray recently noted, even an Uber driver bringing a pregnant woman to a clinic can be vulnerable.
In other words, SB 8 will put abortion providers (and maybe even Uber drivers) on a storm of lawsuits that they cannot possibly defend against, even if they ultimately prevail in each case. And should an abortion provider lose even one case, they could face really draconian financial sanctions.
For these reasons, many abortion clinics in Texas have simply stopped offering abortions. As Judge Stephen Breyer noted in his dissenting opinion, “One of the clinic applicants stated on its website that it was & # 39; due to the Texan & # 39; SB 8 law & # 39; & # 39; currently cannot offer abortion procedures & # 39 ;. “Others may try to have abortions before the sixth week of pregnancy, but they do so at an enormous risk.
The law usually prevents situations like this by allowing a party facing imminent legal harm to block a law before it can be used against them. But of course, SB 8 was designed to thwart such lawsuits. And the Supreme Court has now approved Texas efforts to thwart a criminal record.
This is what the Supreme Court explains in Whole Woman’s Health
There is a potential flaw in Texas & # 39; s plan to prevent anyone from challenging SB 8 before it went into effect. The law is enforced by private parties filing lawsuits that allow a Texas state judge to award bounties against abortion providers. But state judges are state officials tasked with enforcing SB 8, which means they could potentially be sued.
And that's exactly what the plaintiffs at Whole Woman & # 39; s Health did by adding a Texas judge and a Texas clerk to the list of defendants in their lawsuit.
A potential problem with this approach, however, is that lawsuits against judges are usually denied – although they are not absolutely prohibited. As the five most conservative judges correctly state in their Whole Woman's Health regulation, it is not entirely clear whether "under current precedent, this court can issue an injunction against state judges who are asked to rule a lawsuit under Texas law" .
In fact, this is the core of the majority of Whole Woman’s Health arguments. It is unclear whether private lawsuits against Texas judges are admissible, so it is inappropriate for the Supreme Court to order these judges not to enforce SB 8.
But here's the thing: yes, it's true that the current Supreme Court precedent is unclear as to when state court judges can be sued in federal courts. But do you know who can make binding decisions interpreting previous Supreme Court decisions? The United States Supreme Court. This is the whole point when there is a single court at the top of the country's court hierarchy: it can resolve new legal issues that are not addressed by existing court decisions.
Additionally, while there is some uncertainty about when state judges can be sued, the court's decisions suggest that a lawsuit should be allowed based on the unusual facts presented by Whole Woman’s Health. In Mitchum v. Foster (1972) the Court stated that one of the functions of federal justice is to "protect the people from unconstitutional acts under state law, whether those acts are executive, legislative, or judicial" ". Federal court injunctions binding state officials are especially justified if they are deemed "essential to preventing a major, immediate and irreparable loss of a person's constitutional rights".
In addition, all of the doctrines Texas relies on to thwart judicial review – a rigid form of sovereign immunity and the way Young set out to circumvent sovereign immunity – are judicially-created doctrines that the Supreme Court revises at any time can. (Although Amendment 11 provides some form of sovereign immunity, its text does not immunize Texas against lawsuits from its own citizens.)
One possible reason the court may not want to resolve this issue right away is because Whole Woman’s Health is on its shadow list. The question of when private prosecutors can sue state judges in federal courts is a tough one that the court should probably ponder for more than three days.
But we have long since reached the point where the Court of Justice avoids solving difficult legal issues in shadow procedural systems. During the pandemic, the court issued two shadow judgments that completely revolutionized its approach to "religious freedom" cases and severely curtailed a breakthrough Supreme Court precedent in the process.
Similarly, the Supreme Court ignored attempts on the 24th to end. This decision was also passed down on the shadow file.
In other words, the Roberts Court is quite ready to make full legal pronouncements in shadow procedural rules if conservative litigants so request. But now that a group of litigants hated by Conservatives have urged judges to issue a similar order, the five most conservative judges insist on judicial humility.
If the court had also wanted to take more time to weigh up the question of when judges in state courts could be sued in a federal court, the judges could have given themselves this time. As Roberts writes in his dissenting opinion, the court should have issued an injunction "excluding the enforcement of P. B. 8" while this case is in the due process of litigation rather than being enforced under a shadowy code of procedure.
That way, the court would avoid making a blanket statement about the right to abortion – and whether states can use clever procedural tricks to evade litigation – without full briefing, oral argument, or more than a few days to respond Case to consider.
It's hard to imagine the court going through a law like this on anything but abortion
There's also a profound practical reason why the Supreme Court shouldn't bless laws like SB 8 – and why it almost certainly wouldn't bless a similar law addressing an issue other than abortion.
For example, imagine that New York passed a law that allows "anyone" to sue gun owners and collect a $ 10,000 bounty from those gun owners. Or imagine if a state allowed anyone to file a lawsuit against Judge Samuel Alito and get a $ 10,000 bounty every time Alito used the word "the".
Does anyone think that this Supreme Court would rule that a law authorizing thousands of harassment cases against gun owners is compatible with the second amendment? Or that it would force those gun owners to hire lawyers and run a seemingly endless stream of legal proceedings in order to avoid paying a bounty?
Does anyone believe that this court would allow any of its own members to be bombarded with legal proceedings whose sole purpose is to prosecute them and impoverish them in legal fees?
With their decision in Whole Woman’s Health, the judges unleashed a monster. Seriously, this decision would allow any state to subject any person or institution to an overwhelming wave of lawsuits against which it is impossible for them to defend themselves. SB 8 is a direct attack on the rule of law and the principle that everyone should have their day in court before being punished by the state.
It is an attack on Amendment 14, which provides that no state "may deprive a person of their life, liberty or property without due process."
But if a state were to target gun owners or Alito or anyone else the most conservative Supreme Court justices approve of, the court would almost certainly step in to protect a conservative trial attorney. Just last month, in the Chrysafis v Marks case, the Supreme Court blocked part of the New York State eviction moratorium because it "refused to hear the landlord" before that landlord had to accommodate an unwanted tenant.
The Supreme Court protects due process – when the right litigant seeks protection from the court. One of the most disturbing things about Whole Woman’s Health is that it suggests that the court has abandoned its most fundamental principle: equal justice under the law.