As we discussed recently, the state of Texas presented a novel problem to the United States Supreme Court by enacting a law prohibiting abortions after a heartbeat is detected, but giving the right of enforcement to private citizens and not to any state official. Today, the Court handed down its opinion dismissing most of the claims but preserving the challenge going forward. Here is a short summary.
When abortionists sought to challenge S. B. 8, the Texas Heartbeat Act, they really had no one to sue because no state official is charged with its enforcement and no private citizen had sued. Still, they tried to push the legal envelope by suing a whole host of people, including state judges or state law clerks, the attorney general, some licensing officials, and even a potential private citizen defendant in an effort to enjoin the law and prevent it from going into effect.
The United States also tried to intervene, given its radical pro-abortion stance under President Joe Biden. That was the easy part (United States v. Texas). Its claim was summarily dismissed by the Court (8-1), as expected, with only Justice Sotomayor dissenting. The United States simply has no business interfering with this state law and basically seeking an unprecedented injunction against all persons in the country. Their effort would break with the most fundamental principles of federalism in our Constitution.
The more interesting challenge (Whole Woman’s Health v. Jackson) is a bit more complicated. In its opinion, the Court wanted to stress first what it was not deciding. “In this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court,” said Justice Neil Gorsuch who wrote the majority opinion.
He summarized, “The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others.” So, who can be sued? Well, not court officials: “Under the doctrine of sovereign immunity, named defendants Penny Clarkston (a state-court clerk) and Austin Jackson (a state court judge) should be dismissed.” Not the attorney general: “Texas Attorney General Paxton should be dismissed.” And not a private citizen prematurely (an affidavit showed he had no intention to sue): “The sole private defendant, Mr. Dickson, should be dismissed.”
But the Court leaves open “other defendants (Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young), each of whom is an executive licensing official who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas’s Health and Safety Code, including S. B. 8. Eight Members of the Court hold that sovereign immunity does not bar a pre-enforcement challenge to S. B. 8 against these defendants.”
Justice Clarence Thomas dissented from this last pronouncement, saying he would have dismissed the case against “all respondents, including the four licensing officials.”
It also declared “petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8’s compliance with the Federal Constitution. Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S. B. 8. Any individual sued under S. B. 8 may raise state and federal constitutional arguments in his or her defense without limitation.”
So, the bottom line is that the challenge to this law will continue as to the allowed defendants.
It is important to note that Chief Justice Roberts, joined by Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, expressed considerable frustration with the law in concurring in part and dissenting in part. He wrote, “Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review.”
It seems clear the Chief views the law as an attack on the Court itself. “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings … Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’[] The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” he wrote.
We will have to wait for a further challenge to see where the more conservative justices land on the issue.
As I mentioned before, this problem is of the Court’s own making, by injecting itself into the political abortion debate. Texas is simply trying to protect life, which most of its citizens demand, and trying to work within the arbitrary and dubious parameters the Supreme Court has set up. The best way for the Court to guard its legitimacy would be to reverse Roe and Casey in the Dobbs case, and then states like Texas would be free to protect life, without having to come up with innovative ideas to appease the Supreme Court’s personal preferences.
