On Monday, Nov.1, the U.S. Supreme Court heard oral arguments in two cases relating to Texas Senate Bill 8, the so-called “Heartbeat Bill,” a near-total abortion ban. Both United States v. Texas and Whole Woman’s Health v. Jackson lasted about three hours and raised several important constitutional questions about Texas law’s enforcement provision. Justices, including Brett Kavanaugh and Amy Coney Barrett, seemed skeptical of the constitutionality of the private litigation S.B. 8 enables. While a decision is only expected this coming summer, the constitutional questions still stand, and the law has serious implications for undermining constitutional rights. 

Senate Bill 8: “The Heartbeat Bill”

During Texas’ 87th Legislative Session, several key GOP priorities were pushed through, including permitless “constitutional” carry of handguns, property tax relief, redistricting changes, election “integrity” measures, and of course the near total ban on abortions. Similar to other conservative states, Texas’ legislature has been trying for decades to ban abortions and overturn Roe v. Wade (1973). However, S.B. 8 represented a change in tactics for the legislature. Up to this point, states have pursued direct bans on abortion to invite legal challenges which would allow the state to challenge Roe at the Supreme Court (similar to legislation passed in South Carolina and Arkansas this year). Texas, however, changed track: rather than directly banning abortion, S.B. 8 introduced a novel enforcement mechanism through “private civil actions” (Sec. 171.207). This raises two questions: what constitutes a “private civil action,” and why would Texas choose this mechanism? 

According to Section 171.208 of the law, any person, even non-Texas residents, may bring a “private civil action”, or lawsuit, against a provider who performs an abortion, assists anyone in seeking an abortion in any way, or intends to do either. If these plaintiffs are successful, courts will pay out up to $10,000 per case referenced in the suit, and they are also entitled to attorneys’ fees for the cost of the civil action. The potential costs of defending against an incalcuable number of suits and potentially having to pay out $10,000 per incident is intended to act as a deterrent to abortion providers. This mechanism, at least, has accomplished its intended purpose: according to court filings challenging the law, “hundreds of patients” have been turned away from clinics, and many clinics have drastically reduced the number of abortions performed in order to comply with the law. 

Another key reason Texas lawmakers chose the private civil enforcement mechanism was to circumvent legal challenges to their ban on abortion. Professor Diego Zambrano of Stanford Law describes the enforcement mechanism as a, “pernicious use of private enforcement,” along with, “labyrinthine procedures to avoid federal constitutional review.” So far, it appears that the solution has worked. Despite initial injunctions by the 5th Circuit, the Supreme Court refused to stop S.B. 8 from going into effect on Sept. 1. Only now is the Court hearing suits against the law, and these current arguments are only to determine if further lawsuits against the bill will be allowed. In other words, the Supreme Court’s decision in these cases will not strike down or uphold S.B. 8; they will simply determine who can be sued by whom to challenge the law. 

Texas Squares Off with SCOTUS 

During the Nov. 1 oral arguments in United States v. Texas and Whole Woman’s Health v. Jackson, the Court seemed to separate the two issues of the right to abortion and the specific enforcement mechanism in the Texas law. As Marc Hearron put it while arguing for Whole Woman’s Health, “Texas delegated enforcement to literally any person anywhere except its own state officials. The only conceivable reason for doing so was to evade federal court review under Ex parte Young” (Pg 3, Lines 17-21). Of course, the only reason that the law was structured this way is because Texas legislators knew that abortion is a consitutionally protected right, and thus any laws restricting it would be subject to judicial review. 

A major component of the constitutional arguments against S.B. 8, as voiced by both Hearron and Solicitor General Elizabeth Prelogar (representing the United States in US v. Texas, Pg 3, Lines 11-19) is the supremacy of federal law and judicial review. Both attorneys argue that the provisions of the law violate federal law, constitutional rights, and potentially could have the impact of trampling other protected rights through this unique enforcement mechanism. And while we won’t see an official ruling for months, the questions that the justices ask Texas Solicitor General Judd Stone and the other counsels arguing before the court can be a telling sign of the justices’ opinions. Critical conservative Justices Brett Kavanaugh and Amy Coney Barrett, appointed for their supposed willingness to overturn Roe v. Wade, seemed increasingly skeptical of the constitutional standing of the enforcement provision.

What makes Whole Woman’s Health v. Jackson distinct from other cases is that the primary defendant in this case is a sitting Texas district court judge, Judge Jackson, leading to significant legal debate about Ex parte Young and the ability of plaintiffs to sue judges as enforcers of a law in federal court. As argued by Texas S.G. Stone, the unique nature of the Texas law is that, “no Texas executive official enforces S.B. 8” (Pg 45, Line 20-21). Therefore, per Mr. Hearron, plaintiffs must sue the courts themselves because, “the state has delegated enforcement…and has weaponized the state court system into a tool that can be used to abrogate constitutional rights” (Pg 44, Line 9-13). 

These legal questions about Ex parte Young, a possible chilling effect as a result of the bounty-system’s enforcement, and the potential for future laws to trample on other constitutional rights were at the forefront of many of the questions asked by justices. Three of the five conservative judges on the court seemed skeptical to side with Texas on many of these questions. Justice Kavanaugh, for example, asked about how the law’s enforcement mechanism could be used to limit rights under the First and Second Amendments. Chief Justice Roberts posed a hypothetical to Texas S.G. Stone, asking if a $1 million bounty would pose a chilling effect on abortion providers. When Stone said no, Roberts seemed very skeptical, saying, “that takes a lot of fortitude to undertake the prohibited conduct in that case. And under the system, it is only by undertaking the prohibited conduct that you can get into federal court” (Pg 52, Line 11-15). This hypothetical also highlights the nature of the law, that the suits could be repeated over the same case in different counties. The main concern, raised by multiple justices over the course of the arguments for both Whole Women’s Health and United States, was the possibility of “copycat” laws on different subjects, such as the First and Second Amendments or the legalization of same-sex marriage. Those questions, posed by Justices Barrett, Kavanaugh, and Sotomayor, respectively, will likely sound the death knell of the enforcement provision of S.B. 8. Justices Kavanaugh and Barrett are critical in determining the outcome of the case, and broke with Justices Alito, Thomas, and Gorsuch in their apparent support of the law. Alito, Thomas, and Gorsuch likely support the law due to their apparent support for overturning Roe rather than the legal justifications for the enforcement mechanism specifically, per their statements during oral argument. 

The situation is more complicated with regard to the other case heard by the Court, U.S. v. Texas, which raises questions about the ability of the Department of Justice to unilaterally litigate against states to prevent the enforcement of “unconstitutional” laws. The Court seemed unwilling to answer this question if they didn’t need to, with Justice Kagan commenting that if plaintiffs in Whole Women’s Health were to prevail in their suit, the Court, “wouldn’t even have to rule on the United States versus Texas case. …that’s very complicated for other reasons” (Pg. 35, Lines 10-12). Questions asked by the justices seem to point to lingering doubt about a substantial government interest in individual cases, such as suit over S.B. 8. Specifically, this will probably apply strict scrutiny, meaning there must be a demonstrable government interest in the action, and it must be as narrowly tailored as possible. Other areas that Justices seemed skeptical on included the request by the DoJ that SCOTUS allow federal courts to enjoin state judges from hearing cases, which is an unheard practice and in direct conflict with Ex parte Young (Pg. 15, Line 15-25, Pg. 18-19, Line 25, Line 1-10). Justice Breyer makes the concerns of the Court crystal clear when he expressly asks Solicitor General Prelogar this question.

“Have you sat down and thought through what are the implications of the test, or is it that the federal government, no matter who’s in charge, without a statute, whatever party, whatever president, can just go and intervene in any case, can bring a federal case whenever they think a state law affecting private people is unconstitutional?” (Pg. 28, Line 14-21). 

Essentially, the Court is worried about potential partisan or frivolous interventions by the Justice Department in well-established state powers. It’s likely that the Justice Department’s suit may be dismissed and not be allowed to proceed by the Court. This could pose implications for other suits the DoJ is bringing, such as their recent filing against another Texas law, S.B. 1, or the so-called “election integrity” law. This suit is also based on constitutional grounds, so the Court’s decision (or lack thereof) in United States v. Texas could determine the future of this case and many others. 

Gaveling Out 

The constitutional and legal questions facing Texas’ abortion ban are dense, complicated, and controversial, even before you touch upon the question of the constitutionality of abortion. These cases didn’t touch directly on abortion rights themselves because of the upcoming oral argument on the Mississippi abortion ban in Dobbs v. Jackson Women’s Health Organization, which may be the vehicle by which the Supreme Court decides if Roe v. Wade is “settled law.” The concept of settled law refers to binding precedent — precedent with “mystical permanence,” or even substantive parts of legal doctrine not subject to change. For now, even if the Supreme Court rules Texas’ abortion law unconstitutional on the basis of its enforcement provision, that may only be a temporary relief for providers. If Roe or Casey v. Planned Parenthood were to be overturned, then states like Texas could ban abortions outright, without pulling similar stunts to avoid federal review.

For now, all that we can do is wait and see what the Supreme Court decides when it releases its slate of rulings sometime in the next six to eight months. The constitutional fate of Texas’ abortion law may be decided already, but this will not be the last time lawmakers get creative with policy to circumvent federal laws they dislike.