Yesterday, the Supreme Court heard oral arguments in two cases involving the Texas law banning abortions, Senate Bill 8. The first was a challenge by abortion provider Whole Woman’s Health. The second was an argument by the Department of Justice. Despite the intense media attention on these cases, neither argument was actually about abortion, the rights of pregnant people to access health care, or the constitutionality of the Texas abortion ban.
Instead, both hearings were about whether anybody has the right to sue to stop Texas from carrying on with its facially unconstitutional restriction on abortion rights. In the first case, Whole Woman’s Health argued that abortion providers can challenge the law by suing the state because state officials (judges mainly) will be in charge of administering lawsuits against providers. In the second case, the Department of Justice argued that it can sue the state of Texas directly, since SB 8 attacks the supremacy of federal law and affects federal officials who “aid and abet” abortions under the law’s ridiculously broad definitions. In both cases, the plaintiffs argued that somebody must be able to sue to stop enforcement of this law, because the Constitution must apply in Texas.
What this meant is that instead of a fight about abortion, the hearing was a fight about legal procedure. It was the legal equivalent of watching a massive structure fire rip through a building, while firefighters argue over who is responsible for turning on the hose.
As many will already know, SB 8 was designed specifically to evade constitutional review. The Texas legislature attempted to do this by empowering private bounty hunters, not state officials, to sue abortion providers who perform services after six or so weeks of pregnancy (and anyone else who helps along the way).
To get around the his hurdle, Whole Woman’s Health argued that it can still sue the state because state courts will carry out all of the ministerial functions of making the bounty hunters’ lawsuits apply to abortion providers, and those courts should be prevented from violating constitutional rights. Texas countered by saying that state courts cannot be prevented from hearing lawsuits, citing a Supreme Court case (Ex Parte Young on your useless trivia card) that’s literally over 100 years old. Whole Woman’s Health then argued that because these state judges will essentially be “enforcing” SB 8, they can be sued as proxies of the state under an exception to that same case. And then Justices Samuel Alito and Neil Gorsuch got all up in their feelings at the notion that “neutral” state court arbiters can be accused of “enforcing” anything.
The women on the court seemed less perturbed. Justices Elena Kagan, Sonia Sotomayor, and Amy Coney Barrett instead tried to refocus the arguments on SB 8’s dangerous and unprecedented scheme, its “chilling effect” on abortion providers, and the inability of people to even argue their constitutional rights in court.
Yes, one of the people raising these questions was Amy Coney Barrett. She was one of the five justices who allowed SB 8 to be implemented in the first place, back in September, when Whole Woman’s Health sought an injunction to stop the law from taking effect; back then, she thought SB 8’s blatant attempt to evade constitutional review presented “novel” issues and refused to suspend the law while she thought about it. But at yesterday’s oral arguments, she expressed concern that the law prohibits abortion providers from arguing against the constitutionality of SB 8 in state court. That’s important, because Texas’s lawyers argued that state court, not federal court, is the appropriate place to challenge SB 8, but those lawyers also know that SB 8 explicitly prohibits constitutional arguments against the law in state court. Barrett asked lawyers to explain this sleight of hand three times, by my count, and never received a good answer. That gives me hope that she might join Chief Justice John Roberts (who voted against the implementation of SB 8 in September and said nothing at oral arguments to indicate that he’d changed his mind) in siding with Whole Woman’s Health.
And they might be joined by a sixth vote. Alleged attempted rapist Brett Kavanaugh also voted to allow implementation of SB 8, but at oral arguments expressed a newfound concern for gun owners should the law be allowed to stand. I’m not making that up. Kavanaugh has found a way to understand abortion rights through the lens of gun rights, because we live in a hell where guns have more rights than women. But I guess I should be thankful that Kavanaugh got out of his cups long enough to notice that if SB 8 is allowed to go forward, other states might pass the same kind of legislation targeting gun owners or gun manufacturers.
Unfortunately, allowing the Whole Woman’s Health lawsuit to go forward is very different from stopping SB 8 in its tracks, and that’s what the second case was about. Unlike Whole Woman’s Health, the Justice Department is able to sue the state of Texas directly to defend the federal government’s rights and the supremacy of the federal constitution over conflicting state laws. US Solicitor General Elizabeth Prelogar, confirmed just four days ago by the Senate, expertly argued (when she wasn’t being interrupted by Gorsuch) that an immediate injunction blocking SB 8 is the appropriate response to Texas’s unprecedented attempt to evade constitutional review. She maintained that SB 8 doesn’t impact only abortion providers but also citizens—pregnant people—who want to exercise their constitutional rights, as well as government officials charged with aiding those citizens.
But Justices Clarence Thomas, Alito, and Gorsuch were unmoved by the idea of this “chilling effect” on abortion rights and were instead concerned by the chilling effect on religious liberty brought about by mask mandates. Again, I’m not making this up, because we are in hell. Both Alito and Gorsuch indicated that they were skeptical that the harm to women in Texas is so great that it requires an immediate injunction, and they made this point by drawing analogies to mask mandates, which they argued attack religious liberty but are not immediately enjoined by the courts pending a review of those mandates on the merits. These two men literally sat there on high and argued that forcing a person to give birth against her will is analogous to forcing a person to wear a mask during a pandemic—and should be held to the same legal standard—and did so while repeatedly interrupting the woman lawyer pleading the case in front of them.
Kagan and Sotomayor fought against this framing, obviously, but Roberts, Kavanaugh, and Barrett were notably less vocal during the DOJ argument than they were during the Whole Woman’s Health argument.
Which means I come out of oral arguments believing much the same as I believed before oral arguments: The Supreme Court will strike down SB 8—eventually. The bounty-hunting scheme is simply too antithetical to constitutional order to be allowed to stand. But the court won’t do it quickly. Texas wants the court to dismiss the Whole Woman’s Health case, but it sure sounds like it’ll lose and the abortion provider will be allowed to sue and finally get to the question of whether SB 8’s crazy-bounty hunting scheme is constitutional. Since it’s clearly not, I expect that Whole Woman’s Health will eventually receive a favorable ruling from the district court.
But that is where the good news ends. I do not expect the Supreme Court to grant the DOJ’s request for an immediate injunction against the law, meaning that Texas will continue to be able to restrict abortion rights in this patently unconstitutional way while we wait for the ruling to come down through the system. And while I still have confidence that SB 8 will eventually be overturned, the larger fight about whether states can restrict abortion rights prior to fetal viability, as set forth in Roe v. Wade, hasn’t yet been argued in court.
That day is coming, however: Dobbs v. Jackson’s Women’s Health is set to be argued on December 1. That case addresses a Mississippi law that bans abortions after 15 weeks and does so without the bounty-hunting foolishness of Texas’s SB 8 ban. That case was the one conservatives on the court teed up to attack Roe v. Wade, back when everybody thought SB 8 would die a quiet death on appeal because no judge would accept a state’s trying to evade judicial review.
Nothing that happened at the SB 8 arguments suggests the conservatives are any less committed to taking away women’s rights than Trump promised they would be when he appointed them. Barrett and Kavanugh just want to take away those rights without adopting Texas-style lawlessness.
SB 8 is a structure fire that the court will eventually douse, but the controlled burning down of women’s rights appears to be very much proceeding as planned.