Abortion Goes Before the Supreme Court Today. So Does a Sane System of Law Enforcement.

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The Supreme Court hears arguments today S.B. 8, Texas’s sweeping abortion ban, which makes having any abortion in the state more than six weeks after conception a crime—and importantly enforces that law by handing the power to vigilantes who can file civil suits against anyone who assisted the abortion, collecting $10,000 bounties plus attorneys’ fees and costs for each successful suit.

In a much criticized “shadow docket” 5-4 opinion, with Chief Justice John Roberts joining the three liberals in dissent, the High Court let the Texas law go into effect two months ago rather than blocking it, remarking that it raised difficult procedural questions including who could be sued to stop the law. They permitted this even though S.B. 8’s near total ban on abortions conflicts with the Court’s own ruling in Roe v. Wade that forbids states from passing abortion restrictions before viability of the fetus, or around 24 weeks of pregnancy. Since then, and rather predictably, abortions have pretty much ceased across Texas. In other words, the law is having exactly its intended effect. 

The two Texas cases, Whole Woman’s Health v. Jackson and United States v. Texas do present some procedural questions that must be sorted out, including whether the federal government, which filed suit to block the law, has the proper standing to sue Texas over it. But because these are two combined suits—one by the federal government and one by abortion service providers within the state—the question of the Justice Department’s standing won’t prevent consideration of the larger issues: 1) vigilante enforcement of the law and 2) the underlying constitutional question of when a state may forbid an abortion.

The Court will be tempted to limit the issue to the former, i.e. whether it is permissible to delegate enforcement of a law to private citizens, thereby absolving the state of any role. As ScotusBlog (a site for law nerds) noted, “[T]he law’s unusual enforcement scheme is a feature, not a bug. By stripping the state of any role in enforcing the law, and instead outsourcing enforcement to private individuals, S.B. 8’s supporters hoped to make it harder to challenge the constitutionality of the ban in court.” It further observed that “by creating such broad liability, with the potential for hefty damages, the law’s proponents also wanted to deter virtually all abortions—even those that would occur before the sixth week of pregnancy.”

While seeming to shield the state from suit because it is not “involved” in enforcement of the law, this structure is facially disingenuous, argue the law’s opponents. The state still operates the court system where these bounties would be collected. Judges would still have to enforce subpoenas and judgments. It is therefore still the power of the state that lies behind the threats of lawsuits. Pretending the state isn’t involved is ludicrous.

The argument is also quite the slippery slope. While there are plenty of examples where the state can give a private right of action to enforce a law (e.g. a private citizen suing to stop environmental laws being broken), this is the first time a state has passed a law circumventing a federally protected right by seeking to wash the state’s hands clean of any involvement. One can imagine similar laws being passed in more liberal states against things like gun owners should a “wild west” form of civil lawsuit vigilante justice be greenlit by conservatives on the Court. 

In fact, as Politico noted, the abortion clinics suing to stop the law make this very point in their briefs: “If Texas gets away with this ploy, the constitutional right to abortion will be the first but certainly not the last target of states unwilling to accept federal law with which they disagree,” the briefs argue. This argument springboards off comments made by Chief Justice Roberts, who warned the Texas law might become “a model for action in other areas.”

If the majority of justices nevertheless agree with their initial ruling and believe the law may be enforced as written, there is still the question of whether the law is an unconstitutional usurpment of a federally protected right because it impermissibly constrains the right to abortion, as set forth in Roe v. Wade and reiterated in Casey v. Planned Parenthood. That is to say, if laws in general may give private citizens the right to enforce them by way of civil suits with bounty awards, is that still true when the law is itself an unconstitutional end-run around a protected federal right? The Justice Department is there in Court today to make this case.

We may see a glimpse of how the Court is likely to shake out on the fundamental underlying right to an abortion, which is squarely before the Court again in December in another case, this one out of fellow Southern state Mississippi, which imposed a 15-week abortion ban in defiance of and as a direct challenge to Roe v. Wade. With three new Trump-appointed justices on the Court, the right to abortion is threatened as never before, and the fact that the Court is even hearing arguments on three cases that directly attack it very worrisome.

The Texas case is unlikely to be decided before arguments begin on the Mississippi case, barring some all-nighters and long Thanksgiving weekend work by the clerks. That said, the Court seems to understand the need and urgency to resolve the Texas question, having agreed to hear it on an expedited schedule that leapfrogs the Fifth Circuit to take the case head on—a move not seen in some 20 years. The parties were given only weeks to submit briefs, not months. On some level, at least some of the justices understand that women are effectively being denied a right to any abortion in Texas while the Court wrestles with this question.

There’s an urgency to close Pandora’s Box around copycat legislation, too. Before other states begin a dire race to the bottom, the Court knows it must at least address the question of whether the fundamental rights of other citizens can be put into the hands of bounty hunters given license to sue by the state. While the answer in any sane world would be a resounding “No,” the recent and surprising move by the Court to allow the Texas law to stand and to impact the lives of Texas women so profoundly over the past months is a sign that we are not really in a sane world.