Here’s a good explainer by Ian Millhiser on the Texas abortion atrocity:
Allowing a law to stand that violates the Supreme Court’s 1992 Planned Parenthood v. Casey decision means that the constitutional right to an abortion is effectively dead. States now have the power to ban abortion for the first time since the Roe v. Wade ruling was handed down in 1973.
While it is theoretically possible that the Court could reverse course in subsequent litigation and strike down SB 8, the sort of justices who would allow such a law to take effect are exceedingly unlikely to do so. And the Court is already planning to hear a case in its next term, Dobbs v. Jackson Women’s Health Organization, which it can use to overrule Roe explicitly.https://71efe1b4f27048570c4dc4d1ae291707.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The right to an abortion was killed in a one-paragraph order in a case that arose on the Supreme Court’s “shadow docket,” a mix of emergency motions and other decisions that receive only cursory briefing and no oral argument. The justices took action after considering the case for less than three days.
Whole Woman’s Health, in other words, is a sea change in the Court’s approach to not only abortion rights but also all other litigation.
The Court has now signaled that it will permit states to enact laws that were intentionally drafted to frustrate judicial review, at least if a majority of the Court agrees with what that law is trying to accomplish. And it handed down one of the most monumental decisions of our era — a decision effectively overturning Roe v. Wade — in a shadow docket order that offers virtually no reasoning.
The reason why SB 8 can only be enforced by private lawsuits brought by individuals who are not employed by the state of Texas is that this structure makes it very difficult to challenge the law in federal court.
Under a doctrine known as “sovereign immunity,” private parties typically cannot sue states directly. In Ex Parte Young (1908), however, the Supreme Court held that a private party who wishes to block a state law may sue the state officer charged with enforcing that law. So, for example, if Texas had enacted a law permitting its attorney general to prosecute abortion providers, an abortion provider could sue the attorney general in federal court and seek a court order blocking that law.
But SB 8 states that it “shall be enforced exclusively through … private civil actions.” State officers and employees are explicitly forbidden from enforcing the law. So, it’s not at all clear who the appropriate defendant is in a federal lawsuit attempting to block SB 8.
It’s worth noting that, even after the Supreme Court’s decision that effectively endorses this method of dodging judicial review, abortion providers still have a way to challenge the state law. They can violate it, wait for someone to sue them, and then argue in that lawsuit that SB 8 is unconstitutional.
But here’s the rub: Under SB 8, “any person” except for a state employee may bring a lawsuit against an abortion provider. That lawsuit may be filed in any number of different Texas state courts, including a trial court in the same county where the plaintiff resides (assuming the plaintiff lives in Texas).
That means anyone who is even suspected of performing an abortion after the sixth week of pregnancy can be hauled into court at any time, in nearly any venue in the state, and potentially by hundreds or even thousands of different litigants. The abortion provider will then have to hire a lawyer and defend itself against all of those lawsuits. And if it loses just one, it will have to pay a bounty of “not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter.”
It’s worth emphasizing the words “not less than.” A judge with particularly strong anti-abortion views might award a bounty of $20,000, or $50,000, or $18 million.
The law also subjects anyone who “aided or abetted” an abortion after the sixth week of pregnancy to similar penalties — a term that’s not defined in the statute but could be construed to endanger parties who have exceedingly loose ties to an abortion clinic. As NYU School of Law professor Melissa Murray recently noted, even an Uber driver who gives a pregnant woman a ride to a clinic may be vulnerable to suit.
SB 8, in other words, is likely to subject abortion providers (and maybe even Uber drivers) to a blizzard of lawsuits that they cannot possibly afford to defend themselves against, even if they ultimately prevail in each case. And should an abortion provider lose even one case, they could face truly draconian financial sanctions.
For these reasons, many abortion clinics in Texas have simply stopped providing abortions. As Justice Stephen Breyer notes in his dissenting opinion, “One of the clinic applicants has stated on its website that ‘[d]ue to Texas’ SB 8 law,’ it is ‘unable to provide abortion procedures at this time.’” Others may try to provide abortions prior to the sixth week of pregnancy, but they do so at tremendous risk.
The law normally prevents situations like this by allowing a party who faces an imminent risk of legal harm to sue to block a law before it is brought to bear against them. But, of course, SB 8 was drafted to frustrate such lawsuits. And the Supreme Court has now endorsed Texas’s effort to frustrate a pre-enforcement lawsuit.
He goes on to explain how this law was specifically designed to avoid judicial review, which is one of the most astonishingly radical things about it. And we might hope that Democrats would use the logic (if you want to call it that) to fashion similar laws to effect outcomes that they support as well, if only to show the Court that they have opened Pandora’s Box.
Unfortunately:
There’s also a profound practical reason why the Supreme Court should not bless laws like SB 8 — and why it almost certainly would not bless a similar law that applied to a topic other than abortion.
Imagine, for example, that New York passed a law permitting “any person” to sue gun owners and collect a $10,000 bounty from those gun owners. Or, for that matter, imagine if a state allowed anyone to file a lawsuit against Justice Samuel Alito, seeking a $10,000 bounty every time Alito used the word “the.”
Does anyone think this Supreme Court would rule that a law authorizing thousands of harassment suits against gun owners is compatible with the Second Amendment? Or that it would force those gun owners to hire lawyers and litigate a seemingly endless stream of lawsuits to avoid paying a bounty?
Similarly, does anyone think this Court would allow one of its own members to be bombarded with lawsuits whose sole purpose is to hound him and impoverish him with legal fees?
With their decision in Whole Woman’s Health, the justices have unleashed a monster. If taken seriously, that decision would allow any state to subject any person or institution to an overwhelming wave of lawsuits that they cannot possibly defend against. SB 8 is a direct attack on the rule of law and the principle that everyone should have their day in court before they are punished by the state.
It’s an attack on the 14th Amendment, which provides that no state may “deprive any person of life, liberty, or property, without due process of law.”
But, of course, if a state were to target gun owners, or Alito, or anyone else the Supreme Court’s most conservative justices approve of, the Court would almost certainly step in to protect a conservative litigant. Just last month, in Chrysafis v. Marks, the Supreme Court blocked part of New York state’s eviction moratorium because it “denies the landlord a hearing” before that landlord is required to house an unwanted tenant.
The Supreme Court is quite protective of due process — when the right litigant seeks the Court’s protection. One of the most disturbing things about Whole Woman’s Health is that it suggests the Court has abandoned its most fundamental principle: equal justice under law.
There is no appeal beyond the Supreme Court. This majority of radical wingnuts can do as they please. Get ready for a very bumpy ride.