Supreme Court Punts on Constitutionally Dubious Texas Abortion Law
Supreme Court declines to block Texas abortion ban. In a 5–4 decision, the U.S. Supreme Court has declined to block enforcement of an extreme new abortion restriction in Texas. Notably, it did not rule on the law’s constitutionality. If it had, we would likely not be seeing this ban take effect.
“This order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” notes the majority opinion.
“The law’s reach is so broad that it clearly violates the Court’s abortion precedents,” as Reason‘s Jacob Sullum noted yesterday. “In Roe v. Wade, it held that the Constitution protects a right to abortion, and it has repeatedly affirmed that basic conclusion since 1973. A case that the Court will hear next term, involving a Mississippi law that bans abortions after 15 weeks (vs. about six weeks under S.B. 8), will give the justices an opportunity to overturn or (more likely) scale back Roe and its progeny. But in the meantime, S.B. 8 is plainly inconsistent with what the Court has said about constitutional limits on abortion regulations.”
The law—which took effect September 1—bans abortion around six weeks of pregnancy and deputizes any private citizen in the country who thinks an abortion has taken place in violation of this rule to sue abortion providers or anyone who has facilitated the procedure. If they’re right, they get at least $10,000 per illegal abortion.
Whether the Texas law is constitutional is a question still winding its way through the federal court system. The matter is currently before the 5th Circuit Court of Appeals. But abortion providers and the American Civil Liberties Union were hoping the Supreme Court would intervene to block the law from taking effect as this plays out.
The reason the Court declined to temporarily block the law is complicated—and suspect, some say.
What the Justices Said
Supreme Court Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas voted not to block the law. Justices Roberts, Breyer, Kagan, and Sonia Sotomayor dissented.
“The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue,” noted the majority opinion. “But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”
In other words, the court won’t yet intervene because it’s not the state tasked with enforcing the law but private citizens in civil court suits.
“We stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit,” the majority opinion concludes.
This is echoed by Chief Justice John Roberts in a dissent joined by Justices Stephen Breyer and Elena Kagan. “Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue,” writes Roberts.
Still, he isn’t buying the majority’s logic. Texas’ legislature “has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime,” he points out.
To Roberts, that doesn’t fly:
I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. But the consequences of approving the state action, both in th