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“The U.S. Supreme Court on Friday left in place a ban on most abortions in Texas but allowed a legal challenge [from abortion providers] to proceed… The Texas law [S.B. 8] enables private citizens to sue anyone who performs or assists a woman in getting an abortion after embryo cardiac activity is detected. Individual citizens can be awarded a minimum of $10,000 for successful lawsuits.” Reuters
“The court ruled that the [abortion] providers’ lawsuit can go forward against a group of state medical licensing officials, but not against the state-court judges and clerks whom the providers had also tried to sue… The question before the court in the Texas providers’ case centered on S.B. 8’s unusual enforcement mechanism, which delegates the sole power to enforce the law to private individuals, rather than state officials.” SCOTUSblog
“A Texas judge on Thursday ruled that the state’s controversial law restricting abortions after about six weeks of pregnancy violates the Texas Constitution, saying it should not be enforced in court. Although Thursday’s ruling is a win for abortion rights advocates, the order only has direct consequences for the 14 lawsuits in the case that the judge oversaw.” Texas Tribune
Here’s our previous coverage of the Texas law and also the Mississippi law the Court recently heard arguments for and against. The Flip Side
The left criticizes the Court’s ruling.
“Suing [state licensing officials] does nothing to block random people, living anywhere in the country, from filing civil lawsuits under S.B. 8’s enforcement scheme… [The law] perverts the civil justice system, erecting insurmountable obstacles in front of the [abortion] providers and others who would have to defend themselves…
“For example, while a provider may successfully argue in an individual lawsuit that S.B. 8 is unconstitutional, any such ruling would be isolated to that case. It wouldn’t stop another person from filing suit over the same alleged conduct, forcing the provider back into court again and again to make the same argument. And while the law guarantees that attorney fees will be paid to winning plaintiffs, it prohibits defendants from recouping fees if they win — so providers would have to fund their own defense ‘no matter how frivolous the suits,’ [Justice Sonia] Sotomayor wrote.”
Jordan Smith, The Intercept
According to Chief Justice John Roberts, “‘[This] law is contrary to this Court’s decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.’ He describes Texas’ enforcement mechanisms as ‘an array of stratagems, designed to shield its unconstitutional law from judicial review.’…
“Five conservative justices think this is just fine. Clever, even… this enforcement mechanism was just too brilliantly innovative to be enjoined and possibly even too brilliant to be successfully challenged in the future. And only the chief justice seems to be willing to say that this constitutes ‘nullification’ of a fundamental constitutional freedom, and should perhaps be addressed accordingly.”
Dahlia Lithwick, Slate
“In a fiery dissent, Justice Sonia Sotomayor argued S.B. 8 ‘echoes the philosophy of John C. Calhoun,’ the pro-slavery leader who argued that states could nullify federal laws. In response, [Justice Neil] Gorsuch claimed that it is entirely normal for constitutional rights-holders to be shut out from federal court, and left to state courts…
“[But] in recent religious liberty cases, the conservative Justices have ridden roughshod over state law to reach their favored outcomes. Judicial deference to state decisions on public health — with literally tens of thousands of lives in the balance — has also been in vanishingly short supply…
“It is only disfavored rights now that get relegated to state court. When it comes to criminal procedure rights, the court confines many claimants to state tribunals by refusing to hear either appeals or to allow a collateral challenge in federal court. And its outright hostility to constitutional tort claims against police violence mean state law is often the only remedy for people whose constitutional rights are violated by police. When it comes to regulating access to federal court, in other words, the present Supreme Court exercises a largely unfettered and ideologically infused kind of discretion.”
Aziz Huq, Politico
“If Texas’s bounty system enables states to violate people’s constitutional rights without direct and efficient recourse to the courts, any number of constitutional guarantees would be in danger. California could ban all guns and empower private parties to enforce the law. Vermont could ban religious services as long as legal vigilantes were the ones punishing those who disobeyed. The court needed to send a definitive message that the constitutional order cannot be played in this way. Its timid ruling instead left the legal situation dangerously unclear.”
Editorial Board, Washington Post
The right supports the Court’s ruling.
The right supports the Court’s ruling.
“Typically, it is only if you get indicted, sued, or written up by the bureaucracy that you get to argue that the law being used to punish you is unconstitutional… Over the years, courts have become more willing to rule on challenges to laws that have not been enforced yet. They have struggled to precisely explain which laws can be challenged in advance, but generally, the person bringing suit has to show that there is some reasonably imminent threat of enforcement — specifically, that the defendant is likely to enforce the law against the plaintiff who brought the case…
“As Gorsuch noted, nobody disputes that a defense to a civil suit under S.B. 8 can raise the question of whether S.B. 8 is unconstitutional; in fact, he cited one Texas state-court decision doing so just yesterday…
“[At the same time] Both pre-enforcement review and traditional conservative skepticism of private attorney-general lawsuits have been grounded in the idea that the process can be the punishment: Even well-considered laws should not lead to drawn-out and expensive forms of enforcement that can be coercive long before any court adjudicates whether the defendant broke the law… We should not create enforcement mechanisms we would not want used by our opponents or enemies.”
Dan McLaughlin, National Review
“The Court did not decide anything about the fate of Roe v. Wade or when states may regulate or ban abortion; that will await decision in Dobbs v. Jackson Women’s Health Organization, the challenge to a Mississippi law that was argued in early December…
“Friday’s decision dealt a partial setback to S.B. 8, because it allowed federal court challenges to the law as it applies to empowering state medical-licensing regulators. But the Court got right the most important part: It refused to allow a newly minted theory that federal courts can issue orders barring state courts from even accepting filings or state judges from hearing cases. That would have been a grave and novel invasion of state legal systems…
“We are skeptical of the enforcement mechanism used by the Texas legislature, which was born of desperation to find some way to protect unborn life. The Court has available, in Dobbs, a better way: End Roe.”
The Editors, National Review
“Federal courts, as Justice Gorsuch says, only resolve ‘actual controversies’ between ‘adverse litigants.’ Court clerks are neutral functionaries. If they can be sued to stop them from docketing S.B.8 cases, would clerks ‘assemble a blacklist of banned claims’? How would that square with due process? Would states need to hire independent counsel for clerks? ‘Many more questions than answers would present themselves,’ Justice Gorsuch says, ‘if the Court journeyed this way.’…
“Justice Sonia Sotomayor, dissenting in part for the three liberals, is at her usual pitch. ‘By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S.B.8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.’…
“Yet as Justice Gorsuch explains, abortion providers can also ask for relief in state court, where he says 14 cases ‘already seek to vindicate both federal and state constitutional claims.’ Or Congress can give the federal judiciary ‘more tools’ to ‘combat this type of law.’ The mistake would have been if the Supreme Court had given into the political pressure and carved up its standing doctrines, with who knows what long-term consequences.”
Editorial Board, Wall Street Journal
