Supreme Court thwarts bid to block SB8 on 'dark day' for Texas abortion rights

The justices ruled more than 3 months after allowing SB8 to go ahead.

December 10, 2021, 5:26 PM

The U.S. Supreme Court on Friday said a narrowly tailored challenge to Texas' near-total ban on abortions, SB8, could proceed in federal courts but declined for a second time to put the law on hold.

The decision, authored by Justice Neil Gorsuch, all but foreclosed hope for a sweeping federal court order halting SB8 enforcement in Texas, abortion rights advocates said.

"The threat of bounty-hunting suits will continue," said Julie Murray, an attorney with Planned Parenthood, a leading abortion provider.

SB8 outlaws abortions after six weeks of pregnancy and, in an unprecedented enforcement arrangement, deputizes everyday citizens to sue anyone who "aids or abets" an unlawful abortion in order to collect at least $10,000 in bounty.

The law has been in effect for more than 100 days, denying access to abortion care for thousands of women in the nation's second most populous state despite 50 years of Supreme Court precedent protecting the right of a woman to terminate a pregnancy prior to fetal viability.

"If you can avoid the enforcement of abortion rights by saying simply, 'private citizens do the enforcing, state officials don't,' there's no saying that that's going to stop with abortion rights," said Florida State University law professor and abortion law historian Mary Ziegler. "The court really didn't do much in this ruling at all to shut down that possibility."

Abortion opponents celebrated the ruling as vindication of a state's ability to enact laws as its elected representatives see fit.

"We celebrate that the Texas Heartbeat Act will remain in effect, saving the lives of unborn children and protecting mothers while litigation continues in lower courts," said Marjorie Dannenfelser, president of Susan B. Anthony List, an anti-abortion rights group.

Texas abortion providers and the Biden administration filed separate federal lawsuits challenging SB8, with both reaching the Supreme Court last month in a highly-expedited appeal.

Abortion-rights and anti-abortion activists rally outside the Supreme Court, Nov. 1, 2021, as arguments are set to begin about abortion by the court, in Washington, D.C.
Jacquelyn Martin/AP

The justices on Friday dismissed the administration suit as "improvidently granted," but resolved the providers' suit in a fractured and technical decision.

By a vote of 8-1, the court allowed the abortion providers to sue four Texas health licensing officials who would be involved with enforcement of SB8. But by 5-4, the justices rejected the providers' request to allow a suit to target state court judges and clerks, or the Texas attorney general, in an attempt to shut down the legal machinery underpinning SB8.

"Clerks serve to file cases as they arrive, not to participate as adversaries in those disputes," Gorsuch wrote. "Judges exist to resolve controversies about a law's meaning or its conformance to the Federal and State Constitutions, not to wage battle as contestants in the parties' litigation."

Gorsuch's opinion -- joined by conservative Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett -- leans heavily on a 1908 Supreme Court decision, Ex parte Young, which said that state officials can be sued in federal court to prevent them from enforcing unconstitutional laws but that an injunction cannot be issued against a state court system.

"The ultimate merits question -- whether S. B. 8 is consistent with the Federal Constitution -- is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy," Gorsuch writes.

Justice Sonia Sotomayor, in a scathing and emotionally charged dissent joined by Justices Elena Kagan and Stephen Breyer, said the majority "errs gravely," calling its opinion a "brazen challenge to our constitutional structure," drawing comparisons to the States' Rights arguments of the Confederacy.

Sotomayor accused her colleagues of turning a blind eye to a state's attempt to circumvent the Constitution.

"The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today," Sotomayor wrote. "The Court effectively invites other States to refine SB8's model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government."

She goes on to say: "It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to "veto" or "nullif[y]" any federal law with which they disagreed."

Gorsuch fired back at Sotomayor, suggesting her claims are hyperbolic.

"The truth is, many paths exist to vindicate the supremacy of federal law in this area," he wrote. The justice said plaintiffs sued under SB8 could take their individual claims into federal court; he also noted an ongoing challenge to SB8 working its way through state courts.

Chief Justice John Roberts, while concurring with part of Gorsuch's judgment, sharply dissented from his conservative colleagues. Making clear that he is no fan of SB8, Roberts wrote plainly: "the clear purpose and actual effect of SB8 has been to nullify this court's rulings."

"The nature of the federal right infringed does not matter," he wrote, "it is the role of the Supreme Court in our constitutional system that is at stake."

He called on the District Court to move quickly to suspend enforcement of SB8, noting the "chilling effect" it has had on a constitutionally-protected right -- even though it's one with which he personally disagrees.

At the White House, press secretary Jen Psaki said President Joe Biden was very concerned by the court's decision and that the Justice Department would continue efforts to defend a woman's right to abortion as best it can.

The ruling "is a reminder of how much these rights are at risk," Psaki said.

Attorney Marc Hearron from the Center for Reproductive Rights, the group leading a challenge to SB8, called it a "dark day for abortion patients and for physicians and providers. It's also a dark day for anyone who cares about constitutional rights," he said.

Hearron said even if the federal lawsuit against the four state officials is ultimately successful it will not necessarily clear the way for clinics resume abortion services in Texas without the threat of legal liability.

"An injunction against those officials will not block Texas' bounty hunting scheme," Hearron said. "All of our clients are evaluating and considering our options going forward."

Amy Hagstrom Miller, president and CEO of Whole Women's Health, an independent chain of abortion clinics in Texas, said most abortion services will remain suspended for the foreseeable future.

"This does not feel like a green light for us to reopen," she said. "The risks for clinic staff and physicians remain great. Keep in mind we walk through these vigilante bounty hunters on our way to work. We're feeling very stuck between a rock and a hard place."

Litigation against SB8 continues in Texas state courts where late Thursday a judge ruled that the law's procedural mechanisms violate the state constitution, but he declined to put the law on hold. The decision is being appealed.

"Litigation regarding SB8 will continue, both in Texas state court and against licensing officials in federal court. It's a reminder of the chaos that [Roe v. Wade] and [Planned Parenthood v. Casey] created, and the importance that those precedents be overturned," said Carrie Severino, president of the Judicial Crisis Network, a conservative advocacy group.

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