The Supreme Court today allowed some lawsuits to go forward against Texas’s six-week abortion ban, commonly known as Senate Bill 8. The majority opinion, written by Neil Gorsuch, allows abortion providers to sue a limited number of state officials and argue that the ban is unconstitutional. The decision means that lower courts will now be allowed to rule on the merits of the ban, and those lower court decisions will eventually be appealed back to the Supreme Court. The law will remain in place while that litigation plays out.
Meanwhile, in a separate, unsigned opinion, the Supreme Court dismissed the lawsuit brought by the Department of Justice against SB 8.
Some will spin this as a victory, at least a partial one, for abortion providers. At a minimum, the providers are allowed to pursue lawsuits against some state officials, meaning the case will go back before US District Judge Robert Pitman (who has already tried to block SB 8), and he can be expected to promptly enjoin the statute—something the Supreme Court notably refused to do. Whether the US Court of Appeals for the Fifth Circuit follows the law this time is anybody’s guess (it didn’t, when given other opportunities to stop SB 8), but there is a chance that something approaching the constitutional right to abortions will resume in Texas, at least until the Supreme Court irrevocably changes that right when it issues its ruling on the Mississippi abortion ban.
But at a more substantive and fundamental level, this ruling is a loss for women and pregnant people in Texas. The Texas Legislature tried to engineer a law that would circumvent the federal Constitution, and the Supreme Court—whose job it is to defend that Constitution—essentially allowed them to get away with it. While singling out a few state licensing officials (those who enforce the Texas Health and Safety Code), Gorsuch’s majority opinion leaves open the possibility that bounty hunters (the civilians SB 8 allows to do most of the work of taking away constitutional rights) could still sue, or at least not be prevented from suing, abortion providers or those who “aid or abet” abortion services. The majority could have put SB 8 to bed forever by enjoining these bounty hunters from suing, but it didn’t—and so the law and its flagrantly unconstitutional scheme remains in place awaiting future challenges.
In dissent, Justice Sonia Sotomayor wrote: “The Court should have put an end to this madness months ago.… It failed to do so then, and it fails again today.” These delays in enforcing the Constitution, which Gorsuch would have you believe are mere procedural concerns, cause real-world harm. A woman raped in Texas in September, when SB 8 was allowed to take effect, is already out of time. And if Pitman doesn’t enjoin the law, or the Fifth Circuit disagrees, women and girls impregnated over the holidays also have no time thanks to this decision that allows an unconstitutional law to remain in place.
Unfortunately, most people will miss this fact, because the headlines will all say “Supreme Court allows SB 8 to be challenged” or some similar characterization that celebrates the procedural victory while missing the fact that the court declined to enjoin anybody from suing under it, even though the law is facially unconstitutional.
Moreover, even that procedural victory is limited. Remember, the main point of SB 8 was to leave enforcement of the abortion ban to private bounty hunters—ordinary citizens incentivized by a $10,000 reward to civilly sue abortion providers and those who “aid or abet” the provision of an abortion. This scheme was designed to make it so that no state official—no governor or attorney general or police officer—could be sued for the law’s clear constitutional violation.
The Supreme Court’s decision says this clear attempt to work around the constitution essentially works. Why? Because the court dismissed lawsuits brought against everybody from the Texas Attorney General Ken Paxton to the court clerks and judges who file the bounty hunters’ civil lawsuits. The court ruled, 8-1 (with only Clarence Thomas dissenting for reasons too dumb to get into), that only the narrow group of state licensing officials could be sued and thus stopped from enforcing SB 8. But by letting the judges and court clerks off the hook, Gorsuch left the key enforcement mechanism of SB 8—the private bounty hunters—basically intact and available to threaten abortion providers. It is the threat of these lawsuits that is all but closing down abortion clinics across Texas, and Gorsuch has done nothing to stop them.
The difference between this ruling and a good one is the difference between Ruth Bader Ginsburg and Amy Coney Barrett. That’s because four justices, including Chief Justice John Roberts, wrote a separate opinion concurring in the judgment but arguing that a much wider class of state officials could be sued, including the Texas attorney general. Roberts wrote that Texas was facially trying to evade constitutional review, explaining: “The clear purpose and actual effect of SB 8 has been to nullify this court’s rulings.” The reason Roberts’s view didn’t carry the day is entirely the result of conservatives’ flipping RBG for ACB. With one more vote, Roberts’s decision would have prevailed. Instead, without writing a sentence, Barrett changed the entire outcome of this case, essentially proving anti-abortion state legislatures right to push forward draconian laws as soon as she got on the court.
By narrowing the ruling to only a few state officials, the majority has essentially told Texas (and any other states contemplating SB 8–style legislation) that their schemes to nullify the federal Constitution can work, even if they didn’t quite get all the way there in this case. As opposed to an admonishment for the attempt, Gorsuch’s opinion reads like an invitation for these states to try again.
Sotomayor pointed out that this is not the first time we’ve heard these arguments. In her dissent (which was joined only by the other liberal justices, Stephen Breyer and Elena Kagan, and not by Roberts), Sotomayor drew a straight line between Gorsuch’s majority opinion and the debunked theories of state “nullification” of federal laws put forward by John C. Calhoun, the father of the Confederacy. Calhoun, the 19th-century slaver, senator, and vice president, argued (in the Ordinance of Nullification of 1832) that individual states have the right to “veto” or “nullify” any federal laws they happen to disagree with. Sotomayor argues that by allowing Texas to get away with SB 8 and erect a law in flagrant violation of the constitutional order, the majority has essentially adopted Calhoun’s position.
That argument hit Gorsuch right in the feels. He clearly didn’t like the Calhoun comparison, and he spent a considerable amount of his majority opinion explaining how he, unlike Calhoun, totally believes in the supremacy of federal laws over states. He further argued, bizarrely, that the Supreme Court is not the only institution capable of enforcing that federal supremacy and pointed to the state courts as another venue that may uphold federal law.
Just to break that down a bit more: Sotomayor accused Gorsuch of taking the states’ rights argument to the antebellum extreme that we literally fought a war over, and Gorsuch’s response was that he was not doing that because he trusts state courts to do what he will not. It’s a ludicrous argument when you understand what he’s saying, but he’s got the Supreme Court majority behind him, kind of like how Calhoun had the court and Dred Scott did not.
And so, litigation against SB 8 will continue. This Supreme Court ruling will pave the way for SB 8 to lose in federal district court, but then it will be appealed, first to the Fifth Circuit and then, again, the Supreme Court. Meanwhile, cases will also make their way through the state court. So far, SB 8 keeps losing in those courts. But here again, the state of Texas will keep appealing, keep looking for one panel of judges that cares more about forcing women to give birth against their will than following the law. Whether that panel ends up being the Supreme Court of Texas or the US Supreme Court, both of those courts are controlled by conservatives.
In the meantime, SB 8 will be law and women and pregnant people will be denied their rights. Texas passed this law knowing it was unconstitutional, assuming that, with Ruth Bader Ginsburg gone, nobody would have the strength to stop them. So far, they’ve been absolutely right.