Current Events | Supreme Court (In)action on Texas’s S.B. 8: The Growing Vulnerability of Abortion Rights

Last month, plaintiffs in Whole Woman’s Health v. Jackson filed an emergency request to block Texas’s new law prohibiting nearly all abortions. [1] On September 1, the Supreme Court denied their request, allowing the nation’s most restrictive abortion law to go into effect. To fully grasp this case’s significance, it is necessary to examine the content of the Court’s decision, the dissents, and the key legal questions that the judgment leaves behind. 

The Texas law, S.B. 8, states that a physician may not perform an abortion on a pregnant person when cardiac activity is detectable. [2] This benchmark typically occurs at about six weeks of gestation (measured from the first day of the last menstrual cycle), before most people know they are pregnant. Though the law includes an exception in the case of a “medical emergency,” there is no exception in cases of nonviable pregnancies or of rape or incest. [3] Plaintiffs in Whole Woman’s Health—a coalition of abortion providers, patients, clinic staff, and more—referenced these highly restrictive features of S.B. 8 in their argument for an emergency injunction. They argued that the law would pose “clear harm” by “immediately and catastrophically [reducing] abortion access in Texas, barring care for at least 85% of Texas abortion patients.” [4] 

It was not lost on Chief Justice John Roberts and the Court’s three liberal members—Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer—that “the very bringing into effect of Texas’s law may well threaten the applicants with imminent and serious harm.” [5] These four justices dissented from the majority opinion, arguing instead that preliminary injunctive relief was necessary due to both the law’s practical effects and its constitutional urgency. [6] The Supreme Court majority, however, denied the application for injunctive relief without addressing the immediate and disastrous effects of Texas’s new law.

In an unsigned two-paragraph opinion, the majority stated that applicants failed to address the “complex and novel antecedent procedural questions” of the lawsuit, alluding to a procedural nuance that originates in the very framing of the Texas law. [7] Instead of enforcing the law itself, as is the usual format of such legislation, the state of Texas delegated enforcement responsibility with subsequent monetary rewards to “any person, other than an officer or employee of a state or local government entity in [Texas].” [8] The resulting roadblock to constitutional challenges to the law is that the law’s opponents must identify who, instead of the state, might act as its enforcers—before any violation and prosecution under S.B. 8 actually occurs. While the plaintiffs in Whole Woman’s Health directed their lawsuit toward court clerks, judges, and a private citizen who threatened enforcement of S.B. 8, the Supreme Court questioned whether these individuals “can or will seek to enforce the Texas law against the applicants in a manner that might permit [the Supreme Court’s] intervention.” [9] Had the state of Texas followed custom by taking on enforcement responsibility itself, there would have been no such question of whether intervention was suitable. This procedural complexity contributes to the law’s severity by obstructing otherwise legitimate constitutional challenges to it. Litigation appears to be viable only after a physician violates the law and faces prosecution, when the individual(s) who have enforced the law are clearly identifiable—an unlikely occurrence due to the potential consequences for violators. [10]

In response to these concerning legal developments, the U.S. Department of Justice is bringing a case against Texas that is crucial for defending the constitutional right to abortion. While S.B. 8’s defensive design hindered plaintiffs’ claim for relief in Whole Woman’s Health v. Jackson, the Justice Department has firm justification for direct action against Texas in its “responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights.” [11] In the short term, the department has also asked a federal judge to temporarily stop enforcement of the abortion ban in Texas. The Justice Department’s case against Texas will likely lead to constitutional review of S.B. 8—a necessary step forward for the protection of abortion rights in Texas. Nonetheless, urgent concerns remain, particularly about the fate of abortion rights, legal enforcement mechanisms, and Supreme Court transparency.

First, the Supreme Court’s six-justice conservative majority will soon confront at least one case in which abortion rights take center stage. In addition to cases challenging Texas’s new law, the Supreme Court also agreed earlier this year to hear Dobbs v. Jackson Women’s Health Organization, a case regarding a Mississippi law that bans abortions after fifteen weeks—the most restrictive abortion law in the country until S.B. 8. [12] In defense of its law, Mississippi directly challenged the landmark 1973 Supreme Court case Roe v. Wade and argued that the Court’s defense of a right to a pre-viability abortion in Roe and subsequent cases is “egregiously wrong.” [13] Whether the Court will overturn Roe, though not definite, has become a real possibility; the opportunities for doing so certainly exist in cases such as Dobbs.

Second, the Court’s refusal to block S.B. 8 due to “procedural questions” raises concerns about the ability of a state to avoid unwanted litigation simply through an unconventional enforcement mechanism. Justice Sotomayor emphasized this concern in her dissent, writing that “the Court’s failure to act rewards tactics designed to avoid judicial review,” including Texas’s unprecedented decision to designate private citizens, rather than the state itself, as the enforcers of the law. [14] Legislators’ use of this tactic in the law’s design was neither unintentional nor concealed, as the Justice Department pointed out in its complaint: “The legislative director of Texas Right to Life stated that one of the ‘main motivations’ for S.B. 8’s design is to stymie judicial review.” [15] The Court’s inaction against such a blatant attempt to avoid judicial scrutiny is intensely troubling in the context of abortion rights as well as all constitutional rights.

Finally, apart from the content of this particular dispute, the Supreme Court’s actions this month should encourage examination of the practice of deciding issues of great importance on its “shadow docket”—a term that refers to Court decisions like emergency rulings and other preliminary judgments in a case that occur outside of normal procedure. Unlike the “merits docket” cases that the public regularly hears about, the Court decides cases on its shadow docket without full arguments and briefing and without a thorough written opinion. [16] Many cases on the shadow docket may still reach the merits docket eventually; however, as in the case of S.B. 8, these opaque preliminary judgments can still be hugely consequential. Justice Kagan introduced the term “shadow docket” to the Supreme Court record in her recent dissent regarding S.B. 8: “The majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.” [17] The presence in this case of an established constitutional right—access to abortion, established nearly fifty years ago in Roe—should have merited full oral arguments before such a consequential decision. Instead, the Supreme Court issued its opinion anonymously and without sufficient consideration of the case’s gravity, illustrating the outsize power and opacity of shadow-docket proceedings.

In the coming months, cases from Mississippi and the Justice Department will present courts with the opportunity to reinforce state accountability for state actions, the value of judicial review, and deference to long-standing precedent. Broad legal implications, however, should not overshadow the tangible effects of these abortion battles. In the wake of Whole Woman’s Health, S.B. 8 has already forced physicians at abortion clinics in Texas to turn away hundreds of patients, including rape victims, for fear of legal and financial penalties. [18] With these critical issues in play, the importance of upcoming cases in the Supreme Court and lower federal courts cannot be overstated.

Edited by Mrinalini Sisodia Wadhwa

Sources:

[1] Emergency Application to Justice Alito, Whole Woman's Health v. Jackson, No. 21A24 (filed August 27, 2021), available at https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:63JF-N0G1-FCYK-24J2-00000-00&context=1516831.

[2] S.B. 8, 87th Leg., (T.X. 2021).

[3] Maggie Astor, Here’s What the Texas Abortion Law Says, The New York Times (September 9, 2021), online at https://www.nytimes.com/article/abortion-law-texas.html?smid=url-share (visited September 17, 2021).

[4] Emergency Application to Justice Alito, Whole Woman's Health v. Jackson.

[5] Whole Woman’s Health v. Jackson, 594 U. S. ____ (2021) (slip op.).  

[6] Id. 

[7] Id. 

[8] S.B. 8, 87th Leg., (T.X. 2021).

[9] Whole Woman’s Health v. Jackson, 594 U. S. ____ (2021) (slip op.). 

[10] Id.

[11] Carrie Johnson and Barbara Sprunt, Justice Department Sues Texas Over New Abortion Ban, NPR (September 9, 2021), online at https://www.npr.org/2021/09/09/1035467999/justice-department-sues-texas-over-new-abortion-ban (visited September 17, 2021). PDF of Justice Department complaint contributed by NPR Politics (NPR). 

[12] Adam Liptak, Supreme Court to Hear Abortion Case Challenging Roe v. Wade, The New York Times (May 17, 2021), online at https://www.nytimes.com/2021/05/17/us/politics/supreme-court-roe-wade.html (visited September 17, 2021).

[13] Nina Totenberg, Mississippi Is Trying To Get The Supreme Court To Reverse Roe, NPR (July 23, 2021), online at https://www.npr.org/2021/07/23/1019746478/on-abortion-mississippi-swings-for-the-fences-asks-the-supreme-court-to-reverse- (visited September 17, 2021).

[14] Whole Woman’s Health v. Jackson, 594 U. S. ____ (2021) (slip op.). 

[15] Johnson and Sprunt, Justice Department Sues Texas. PDF of Justice Department complaint.

[16] Karen Cheng, Bringing the Shadow Docket into the Light, Columbia Undergraduate Law Review (April 5, 2021), online at https://www.culawreview.org/journal/current-events-bringing-the-shadow-docket-into-the-light (visited September 17, 2021).

[17] Whole Woman’s Health v. Jackson, 594 U. S. ____ (2021) (slip op.). 

[18] Paul J. Weber and Jessica Gresko, EXPLAINER: The Texas abortion law’s swift impact, and future, AP (September 16, 2021), online at https://apnews.com/article/health-austin-texas-lawsuits-coronavirus-pandemic-e4352ad8f095612ac249bb8477ddc637 (visited September 18, 2021).