Abortion Providers Seem Likely to Prevail in Texas SB 8 Case

Two cases challenging Texas’ antiabortion law (SB 8), were heard by the Supreme Court earlier today. This is the most important of both. Whole Woman’s Health, v. JacksonThis article addresses the question of procedural law regarding whether abortion providers who are subject to the law may file federal lawsuits against it. Texas claims they can’t, as SB8 delegated all enforcement to private litigants known as “bounty hunters”, who could receive awards up to $10,000 if they win. The state asserts that no official of the state is qualified to be a defendant in a challenge to law enforcement, as they have no control over it. The case is complex and I have detailed my discussion here.

The oral argument transcript makes it seem highly probable that Texas will lose the current phase. If the federal court grants pre-enforcement to the abortion providers, then this is a very likely outcome. My count shows that the plaintiffs likely have at least six votes to their side: Chief Justice Roberts (liberal), Brett Kavanaugh and Amy Coney Barrett. Clarence Thomas may be able to go in either direction. That’s good news for all who value constitutional rights protection by the courts, even those of you don’t like it. Roe v. Wadealso other Supreme Court precedents that protect abortion.

Texas’s position has a major problem. If the Texas private enforcement tactic shields SB 8 from judicial scrutiny, it could also be used to protect state laws that target a variety of constitutional rights such as gun rights and freedom of speech. This is the risk that I, and other opponents of SB 8, have warned about from the beginning. This was highlighted in an amicus brief that the Firearms Policy Coalition filed recently. They are concerned about the implications for Second Amendment rights.

At least three conservative justices seem to have understood this message. Take this critical question Justice Kavanaugh posed to Texas Solicitor-General Judd Stone.

Are you saying…. that Second Amendment rights, free exercise of religion rights, free speech rights, could be targeted by other states… and say everyone who sells an AR-15 is liable for a million dollars to any citizen?…

Would that kind of law be exempt from preenforcement review in federal court?….

We can therefore assume this will apply across all boards as well as what the Firearms Policy Coalition states — to all constitutional rights.

Stone basically admitted Kavanaugh’s points are correct in his response.

Chief Justice John Roberts questioned earlier whether the logic of the state would extend to laws where the possible penalty is “a million bucks” rather than the $10,000 and more required by SB 8. Stone also had to take that leap.

Justice Barrett also worried about the possibility that winning Texas could create an avenue for states to bypass judicial review of constitutionally-threatening laws.  Stone was unable to provide any assurances, as far as I know.

If you must concede several important points made by the opposition, your case before Supreme Court will not be successful. In this instance, the SB 8 model could be used to defeat judicial review state laws that threaten other constitutional rights. There is also no limit on the amount of penalty that states can impose. Roberts stressed that a one-million dollar fine would have a devastating effect on constitutional rights. This is because there’s no preenforcement judicial oversight which allows people to challenge the law and not be held liable if they fail.

Clarence Thomas asked if the federal court could issue injunctions against private parties that might be involved in a SB case. This was based upon the assumption that these former are state actors.

[W]Why wouldn’t the S.B. 8 plaintiffs could be considered private attorneys general. Would it not be unusual to view the attorney general, along with other officials from the state, as working in concert to implement a state-preferred policy if they don’t enforce that law?

Thomas wasn’t satisfied with Stone’s effort to solve this problem. Stone tried to use SB 8 as a comparator to other state laws that allow tort lawsuits (see pp. Oral argument transcript, pp. 47-49

I don’t know which Thomas vote in this instance at the moment. Your creative attack on abortion rights may be enough to make Thomas, perhaps the Court’s hardest critic, laugh. Roe v. Wade(Pause) It’s another negative sign.

Samuel Alito and Neil Gorsuch are likely to vote in support of Texas. However, their votes won’t be enough to ensure Texas wins.

It is likely the plaintiffs will win on the ground that they can sue state court clerks to stop them accepting SB 8 lawsuits against abortion providers. It would be possible to ignore Supreme Court precedent that limits federal courts’ ability to suspend state judges.  The distinction between judges and clerks seems artificial and absurd to me. To prevent them from hearing cases, the whole purpose of interdicting the first is to stop the latter. It would be simpler for me to see a ruling that empowers abortion providers and allows them to request injunctions against all state officials, regardless of whether or not they are judges.

A decision that allows lawsuits to be filed against the clerks is good enough for government work. The subterfugel that seeks to protect SB 8’s enforcement from judicial review would be nullified by it.

This case, as I’ve previously stressed, is It is not About the Future of Roe v. Wadeand the rights to have an abortion. The Supreme Court has the power to limit or overrule abortion providers even if they win their case in federal court. Roea variety of cases to protect the rights of abortion. In light of the recent case in which they are involved, it is possible that they will do so soon. Dobbs against Jackson Women’s Health OrganizationIt raises this very question.

What is most important in the SB 8 litigation? Is it possible for states to use private litigants to protect laws that could threaten constitutional rights from judicial scrutiny? It appears that the majority of judges are determined to prevent this dangerous situation.

Additionally, you should consider  Whole Woman’s HealthToday, justices heard oral argument. United States v. TexasThe companion case, which addresses whether Texas has the legal right to sue the federal government over SB 8, is here. It is more close than Whole Woman’s Health It is possible that the Biden administration will lose it. Commentators with more knowledge about the case than I have will handle it.

As I mentioned in my post last week on SB8, however, US v. TexasIf the plaintiffs prevail, it is much less important Whole Woman’s Health. If there is a broad range of private parties that can, it will not matter if the federal government has to file preenforcement suits against SB 8.