But the fundamental question presented in the two related cases to be argued Monday boils down to something much easier to grasp: Must federal courts stand by, powerless to intervene, when a state not only enacts a flagrantly unconstitutional law but also deliberately rigs the system to prevent effective judicial review?
And that is what the brief filed Wednesday by acting U.S. solicitor general Brian H. Fletcher makes clear. The burning desire to eviscerate abortion rights launched this case, but even more is at stake.
As a group of constitutional law scholars wrote of the Texas law in their friend-of-the-court brief, “By attacking well-established constitutional rights through a scheme designed to evade judicial review, S.B. 8 represents a challenge to the rule of law, our system of constitutional government, and the Constitution’s Supremacy Clause.”
Then, the law removes state officials from enforcing the prohibition; instead, it outsources that job to private parties — antiabortion vigilantes. This could be anyone, from any state, without any connection to the individual seeking the abortion, filing suit anywhere in Texas, against anyone who helped obtain the abortion in any way, except the pregnant woman herself.
If their suits are successful, these bounty hunters are guaranteed an award of at least $10,000, plus legal fees. Doctors or others involved in the abortion could be subject to an unlimited number of suits — even if the abortion was legal at the time it was performed.
Since S.B. 8 went into effect two months ago, it has worked as intended, drastically reducing abortions in Texas. The law makes it too risky, and too potentially financially ruinous, for clinics to operate, so it hasn’t been tested in state court, and in any event a state suit wouldn’t serve to block the law beyond that individual case. Meanwhile, under rulings from the conservative federal appeals court that covers Texas, the federal courts have been closed off to constitutional challenges.
As the solicitor general’s brief summed it up, Texas purposely “sought to create a situation where pregnant women have no access to constitutionally protected abortion care and no mechanism whatsoever to challenge that obvious violation of their constitutional rights.”
The justices are hearing two efforts to block the law, one from Texas abortion providers, the other from the Biden administration. The immediate question isn’t whether the six-week ban is constitutional, but whether either of these parties has the right to go to federal court to have it blocked.
The answer must be yes — this kind of end run around constitutional rights cannot be allowed to stand. What if, as the abortion providers’ brief asks, states in the angry aftermath of Brown v. Board of Education had allowed private citizens to sue, and collect a bounty, on any student seeking to integrate a school? Or what if Texas empowered neighbors — or anyone else, for that matter — to seek injunctions against same-sex couples to stop them from getting married?
In response to all this, Texas offers up a Texas-sized serving of chutzpah. Two servings, actually.
First, the state says, letting federal courts hear challenges to S.B. 8 would amount to an unconstitutional violation of its sovereignty and an injury to federal-state relations. Texas set up a scheme to deliberately nullify federal constitutional rights — and now complains about state rights being infringed? Even Texas has got to be kidding.
Second, Texas, which at the appeals court had the good sense not to seriously defend the constitutionality of the six-week ban, now has the gall to do just that. “SB 8 is entirely consistent with Casey, whose test it expressly incorporates,” its brief asserts, referring to the 1992 case in which a closely divided court upheld the right to abortion. Texas’s statement is simply wrong. The court in Casey said that states may not adopt regulations short of bans that impose an “undue burden” on the ability to obtain an abortion.
“By incorporating the undue-burden defense,” the Texas law applies to “only those post-heartbeat abortions that are not protected under this Court’s current precedent,” the Texas brief says.
This is legal word salad, completely preposterous. Texas went to the trouble of passing, and defending, a ban on abortion after six weeks that isn’t a six-week ban at all? Tell that to Gov. Greg Abbott (R-Tex.), who crowed on signing the law in May that it “ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”
In any event, the burden imposed by the Texas law is undeniably undue: Thousands of women in the state have been denied their constitutional right to obtain abortions.
No first-year law student could write this stuff with a straight face. No Supreme Court justice should buy it.