Some people may be describing Friday’s Supreme Court decision as a win for the abortion clinics, but don’t be fooled. The decision is a disaster for abortion patients, abortion rights, and constitutional rights more generally. The Court’s five most conservative Justices have paved the way not only for the end of Roe v. Wade, but for states to copy S.B. 8 to insulate denials of all constitutional rights from federal court review. There are no two ways about this: It’s a horrendous decision.
The short background here is that S.B. 8 is the Texas law that prohibits abortions after six weeks of pregnancy but does so through the novel method of allowing any individual to sue to enforce the ban rather than having state officials enforce it. Private individuals can sue doctors who perform abortions after six weeks, or anyone who aids or abets the doctor, for $10,000 or more. As a result, since S.B. 8 took effect on Sept. 1, abortion access in Texas has been virtually non-existent, and patients are either self-managing their own abortions, carrying their pregnancy to term, or traveling long distances to other states to get an abortion.
Texas abortion clinics and the United States filed separate lawsuits in federal court to stop S.B. 8. The big problem the lawyers filing these lawsuits faced was determining whom to sue. This was by design. The people who crafted S.B. 8 wrote the bill with the private enforcement mechanism because the clinics would then not be able to sue state officials to stop enforcement, and would rather have to wait for lawsuits under S.B. 8 to challenge it. Waiting to be sued is risky, though, because the lawsuit might be successful, and the doctor might lose their license over the lawsuit.
The two different lawsuits took different approaches to this puzzle. The clinic lawsuit sued Texas judges and court clerks under the theory that they could be stopped from even accepting and hearing these cases. They also sued the Texas Attorney General and health licensing officials claiming they have licensing power over the doctors. The United States sued Texas as a whole (something the clinics are not allowed to do), arguing that anyone who sues under S.B. 8 is an agent of the state of Texas.
Today’s decisions from the Supreme Court addressed the question of whether the plaintiffs in these cases were allowed to pursue these particular defendants. In the United States’ case, the Court dismissed the appeal, saying that it should have never heard the case in the first place. As a result, the United States’ case goes back to the lower courts with no new guidance from the Supreme Court and an uncertain future timeline.
The clinics’ case was the consequential one. In that case, the five conservative Justices threw out the cases against the judges, clerks, and the attorney general. However, a different group of eight Justices (all except Justice Clarence Thomas) permitted the case to go forward against the four state officials responsible for heath-care licensing. The Court held that they were not protected by the immunity doctrines the other Texas officials could invoke and that they had enforcement authority not under S.B. 8 but under other provisions of Texas law.
Because the case can move forward, some outlets are describing this as a partial win for the providers and for abortion rights. But those headlines do not fully capture what’s going on here, because Friday’s decision is extremely troubling for almost everyone involved.
First, S.B. 8 remains in effect with no obvious path to ever being put on hold. Even though the Court allowed the lawsuit to move forward against the licensing officials, the Court did not stop S.B. 8. Rather, it sent the case to the lower courts to sort out what the ruling Friday means. That means more delay, something the state of Texas can delay even further by asking the Supreme Court to reconsider (which it is allowed to do). But even when the case eventually gets back to the trial court, the court will likely be able to stop only the licensing officials from enforcing S.B. 8. It is hard to see how the court could prevent the S.B. 8 lawsuits by private individuals which is the real threat of S.B. 8.
And even if the district court comes up with some theory how to do that, the appeal will go to the Fifth Circuit, a notoriously anti-abortion conservative court that has already thwarted several challenges to S.B. 8. That court would likely reverse or put on hold the district court’s ruling and delay any real resolution about S.B. 8 for months or longer. Meanwhile, patients continue to be denied their constitutional rights and suffer accordingly. And eventually, abortion rights might no longer be protected under the Constitution.
Second, by so seriously limiting the challenge to S.B. 8, the Court’s conservative majority has clearly signaled what it’s going to do in the other abortion case before it, Dobbs v. Jackson Women’s Health Organization. That case is a direct challenge to Roe v. Wade and the continued protection of abortion as a constitutional right and will be decided by the end of June.
Unstated in Friday’s decision is any mention of the future of Roe. However, even though none of the words in the opinion say anything about it, it’s clear that Roe and the right to abortion are not long for this world. If a majority of Justices on the Court thought abortion was a protected fundamental right, they would not have so drastically abdicated federal court responsibility for protecting that fundamental right. Put differently, if this were a case about guns or Christianity, a right the conservative Justices care deeply about, would any reasonable person think the Justices would have allowed S.B. 8 to continue?
Third, the Court has given the green light to more S.B. 8-type laws, touching on abortion and any other constitutional rights. By dismissing all defendants except the licensing officials, the Court has said that an S.B. 8-style law that removes all public officials from enforcement would completely escape constitutional review in federal court. Texas can now amend S.B. 8 to remove the licensing officials from being involved and the case would dissolve. And other states now have instructions on how to write their laws to avoid federal court review completely — just leave out all official enforcement. This could have major ramifications for not only abortion rights, but all other constitutional rights, both those supported by liberals and those supported by conservatives. State courts would have the power to review these laws (as a Texas court did yesterday with S.B. 8, calling it into question but not stopping it and leaving the case ripe for a quick appeal), but federal courts, historically the courts that protected federal constitutional rights, would be boxed out.
In dissent, Justice Sonia Sotomayor sounded the alarm about how dire Friday’s decision is. Her words in full are worth reading:
“In its finest moments, this Court has ensured that constitutional rights ‘can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . . whether attempted ‘ingeniously or ingenuously.’ Today’s fractured Court evinces no such courage. While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”
This is no exaggeration. Friday’s ruling is a direct threat to abortion rights, and lays the groundwork for an obliteration of almost all constitutional rights in the future.