Litman: The wide importance of a narrow issue in Texas’ SB 8 abortion ban

Many observers believe that the Supreme Court’s Monday hearing on Texas’ abortion law was a sideshow. It is a “relatively small” and “merely procedural,” footnote to Dobbs and Jackson Women’s Health Organization. This case will be argued in December, and could finally overturn Roe.

But, Monday’s proceedings are far more than a mere footnote to Roe.

The Texas law known as SB 8 raises fundamental questions that extend beyond the abortion context and reach the core of judicial power. Now, the justices have an opportunity, and it appears likely that they will accept it — to give a strong endorsement of citizens’ right to appeal to federal court any attempts to limit their constitutional rights.

Monday’s hearing focused on the peculiar enforcement mechanism contained in SB 8. Chief Justice John G. Roberts Jr. correctly called the scheme “unprecedented” in its first encounter. It was the creation of anti-abortion advocates, who don’t want to be satisfied with trying eviscerate Roe. They want women and abortion providers to avoid going to court to challenge their unconstitutional lawmaking. SB 8 bans abortion after six weeks of pregnancy, rather than the 20 or more weeks (up until viability) guaranteed under current law.

In essence, SB 8’s drafters poked a loophole into a 100-year-old Supreme Court doctrine known as Ex parte Young, based on a case involving a state attorney general named Edward Young. This allows for the suspension of unconstitutional state statutes, without violating “sovereign immunity,” which protects states from being sued. The court found a balance. Challengers could stop state officials from enforcing suspect laws until constitutional questions are answered.

SB8 is a diabolical reversal of Ex parte Young. The statute specifically bans state officials from enforcing it. Instead, private citizens bring suit (and potentially collect a $10,000 bounty) against anyone they believe has obtained or provided an abortion after the prescribed limit.

In short, SB 8 was designed to make it impossible for any entity to enjoin, to stop the law from being enforced or to force it to be reexamined. True, a woman or clinic could sue under the statute to defend themselves. The law could also be challenged in that manner. But no such suit has been filed, and the threat of the $10,000 bounty combined with the short window of time to seek an abortion has all but closed down the procedure in the state.

Texas’ anti-abortion zealots will continue to be able to snub Roe and the Supreme Court, as long as SB 8 remains in effect.

Monday’s hearing was the court’s second swing at SB 8. The court declined to keep it in September and was almost unwilling to accept the novelty of the no one-to-enjoin plan. This week, however, at least two of the previously confused justices, Amy Coney Barrett, and Brett M. Kavanaugh, seem to have recalled that they are Supreme Court of the United States and have the ultimate responsibility of interpreting the law and defending citizens’ constitutional rights. Barrett and Kavanaugh were not accepting Texas’ arguments.

Kavanaugh stated during oral arguments that the question was: “So, the question is, should we extend Ex parte Young to, essentially, close [the Texas], loophole?” … The whole sweep of Ex parte Young” — its aim to provide a way to challenge unconstitutional state laws — “would suggest extending the principle here, arguably.”

Exactly right.

The conservative justices that President Trump appointed have started to drive the court dangerously towards the right to the point where a majority of judges can enforce views that are out of line with the legal profession. This is bad news for the country and the court.

However, the tone of Monday’s questioning was encouraging, at least in relation to principles that transcend red-blue politics. It is possible that Roberts, Kavanaugh, and Barrett will do the same thing Ex parte Young did with 1908 — create doctrine to support what is fundamental to our system: Federal law rules supreme, and the courts have the power to review and enjoin any unconstitutional laws.

Indeed such an outcome seems so obvious that it’s difficult to see how the three most conservative justices, Neil M. Gorsuch (Clarence Thomas) and Samuel A. Alito Jr., might disagree.

Whatever the final tally, the opinion, instead of a sideshow or a footnote, will be one for the books.

@HarryLitman

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