On Monday, the Supreme Court heard oral arguments in two cases tied to Senate Bill 8, a Texas abortion law that bans abortion at six weeks, before many people know they are pregnant. Things did not go well for Texas. The arguments were not focused on abortion itself — the justices had actually declined Texas’ request to reconsider Roe v. Wade in that case — but on the unique enforcement mechanism that Texas had chosen: prohibiting state officials from enforcing the law while allowing any private citizen to sue an abortion doctor or person who “aids or abets” an abortion patient.
In the next month, the court will likely issue a ruling on two questions about Texas’ end-run around America’s constitutional right to abortion.
In the next month, the court will likely issue a ruling on two questions about Texas’ end-run around America’s constitutional right to abortion. The Justice Department, which had never previously challenged an abortion restriction, will learn whether it can bring suits of this kind. And abortion providers questioning the Texas bill will see if they can sue — or if states can use S.B. 8 as a blueprint for nullifying other constitutional rights.
Oral arguments this week certainly didn’t sound good for Texas, with several conservative justices, including Brett Kavanaugh, sounding skeptical. This could amount to something of a pyrrhic victory for abortion-rights advocates, however. The court’s conservative majority may not like it when conservative states try to nullify abortion rights, but that doesn’t mean the conservative justices aren’t ready to take down Roe themselves. And they have a much better case coming up to do just that.
Back to the case at hand, the questions being asked of the Texas bill may seem technical, but they have big implications: When can states pass unconstitutional laws and then stop the federal courts from doing anything about it? The answer will likely turn mostly on what the court makes of a case from the early 20th century called Ex Parte Young. There are limits on when someone can directly sue a state in federal court. Ex Parte Young carved out an exception: Individuals could get an injunction against state officials enforcing potentially unconstitutional laws. Texas claims to have a workaround to Ex Parte Young: Because it prohibited officials from enforcing the law, Texas is claiming no one can sue to stop them.
A majority of the justices seemed worried about Texas’ nullification argument. But they also seemed concerned about the long-term consequences of siding with the Justice Department. Even Chief Justice John Roberts, who had voted to block S.B. 8 from going into effect, asked Elizabeth Prelogar, the U.S. solicitor general, if there were any limits to the power to challenge unconstitutional laws.
Even so, at most, Texas seemed to have three justices — Clarence Thomas, Neil Gorsuch and Samuel Alito — clearly on its side in both cases. All three justices dropped hints about what they thought of abortion rights, too. Gorsuch suggested providers were unfairly requesting “special treatment” for abortion rights. Alito asked a question about whether S.B. 8 would give women victimized by abortion a day in court.
But three justices is not enough. And Roberts certainly seemed like a lost cause. He described the money available under the Texas law as a “bounty” (only liberal Justice Sonia Sotomayor used similar language) and seemed incredulous when Judd Stone, the Texas solicitor general, claimed that a $1 million bounty would not chill abortion rights. Kavanaugh, viewed by many as a swing vote in the case, asked whether S.B. 8-style laws could nullify gun rights or freedom of speech. By the end of the argument, it seemed that Texas might lose as many as three of the court’s conservatives.
But even if abortion providers can sue Texas, that probably won’t immediately restore abortion access in the state. The justices would most likely send the case back to the lower courts, where it would take time to get either an order temporarily blocking the law or a conclusion on its constitutionality. And if several of the court’s conservatives vote to allow providers to challenge S.B. 8, that doesn’t mean they have changed their minds on Roe.
Justices Amy Coney Barrett and Kavanaugh hardly mentioned abortion rights during oral argument. There may be an easy explanation for that: The court already has plans for Roe v. Wade. On Dec. 1, the court will hear Dobbs v. Jackson Women’s Health Organization, a blockbuster case on a Mississippi law banning abortion at 15 weeks. The court could have picked from a wide range of abortion cases, but the justices chose one that requires them to go to the heart of what Roe means.
Roe and the cases following it create a right to choose abortion until viability, which usually takes place around 24 weeks — well after Mississippi’s law kicks in. To side with the state — as many expect it will — the court will either have to get rid of viability and rewrite Roe or just undo abortion rights altogether.