The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
After I completed my Newsweek column on S.B. 8, I started work on a follow-up piece to lead into Dobbs. In short, the fact that Texas enacted a law like S.B. 8 is proof that Casey's stare decisis analysis failed on its own terms: Roe in no way settled the never-ending debate about abortion. Roe did not, as the Casey plurality boasted, "call the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." Far from it.
Rather, Roe and its progeny have led states to resort to an never-ending array of abortion restrictions that have invariably been enjoined by district court judges with vast discretion, leading to even more circuitous restrictions that were also enjoined. S.B. 8 is a manifestation of what Justice Scalia described as "an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular." In my view, S.B. 8 was born of Pax Roeana, as Justice Scalia memorably put it. Much of the essay explained why Texas felt the need to enact such a clever, but frankly desperate law.
In the Washington Post, Carter Snead opines on this issue, and explains why Texas enacted S.B.8. He describes the familiar cycle in which conservative legislatures are stymied at every turn by pre-enforcement challenges.
Abortion rights advocates challenge every state regulation of abortion and routinely obtain injunctions against such laws by federal trial judges whose discretion is essentially unfettered by the vacuity of the law. Even laws nearly identical to those previously affirmed as constitutional have been recently nullified. Texas responded to this futile cycle by adopting a strategy developed by progressives to root out fraud against the government and to protect the environment — namely, through "citizen suits."
But Texas sought to break that "futile cycle":
The Texas strategy was ingenious in that it evaded the usual pre-enforcement injunction by a federal court, which only has the constitutional power to act when the parties before them are involved in a real dispute. Because neither the state officials nor the private citizen sued in the case were involved in the enforcement of the law, the Supreme Court lacked the power to intervene. . . .
Texas was fed up with the interminable cycle of crafting laws to protect the unborn, followed inexorably by injunctions and years of litigation before judges seeking to apply indeterminate standards stemming from a constitutionally unwarranted power grab by the Supreme Court. . . .
Snead concludes that the only "road back to normalcy" is for the Supreme Court to reverse that "constitutionally unwarranted power grab." The Wall Street Journal suggests that S.B. 8 would make the Court less likely to overrule Roe in Dobbs. I think Snead has the better argument, especially in light of the Chief's Citizens United concurrence.