The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, the Supreme Court heard oral arguments in two cases challenging Texas' anti-abortion law, SB 8. The more significant of the two, Whole Woman's Health v. Jackson, deals with the procedural issue of whether abortion providers targeted by the law can file lawsuits challenging it in federal court. Texas argues that they cannot, because SB 8 delegates all enforcement to private "bounty hunter" litigants, who stand to get awards of $10,000 or more if they prevail. That means, the state claims, that there is no state official who is an appropriate defendant for a preenforcement challenge to the law, since none of them have any control over enforcement. I went over the issues at stake in the case in greater detail here.
After reading the oral argument transcript, it seems to me highly likely that Texas is going to lose this phase of the case, and the abortion providers will indeed get their pre-enforcement day in federal court. By my count, the plaintiffs probably have at least six votes in their corner: the three liberal justices, plus Chief Justice Roberts, Brett Kavanaugh, and Amy Coney Barrett. Clarence Thomas could perhaps go either way. If so, that's great news for anyone who values judicial protection of constitutional rights, even if you are no fan of Roe v. Wade and other Supreme Court precedents protecting abortion.
The big problem with Texas' position is that, if the private enforcement ploy insulates SB 8 from judicial review, the same trick could be used shield state laws targeting a wide variety of other constitutional rights, including gun rights, free speech rights, freedom of religion, and much else. That's the danger I and many other critics of SB 8 have highlighted from the very beginning of this litigation. It was recently emphasized in a powerful amicus brief by the Firearms Policy Coalition, which – for good reason – fears the consequences for Second Amendment rights.
It looks like at least three of the conservative justices have gotten the message on this point. Consider this crucial question posed by Justice Kavanaugh to Texas Solicitor General Judd Stone:
Are you saying…. that Second Amendment rights, free exercise of religion rights, free speech rights, could be targeted by other states… and say everyone who sells an AR-15 is liable for a million dollars to any citizen?…
Would that kind of law be exempt from preenforcement review in federal court?….
So we can assume that this will be across the board equally applicable as the Firearms Policy Coalition says to –to all constitutional rights?
In response, Stone essentially admitted that Kavanaugh's point is correct.
Earlier, Chief Justice John Roberts asked whether the state's logic would also extend to a law where the potential penalty was "a million dollars," rather than the $10,000 or more provided for by SB 8. Stone had to bite that bullet, too.
Justice Barrett similarly worried that a win for Texas would create a loophole for states to evade judicial review of laws threatening constitutional rights. As far as I can tell, Stone wasn't able to reassure her, either.
You know your case before the Supreme Court isn't going well if you have to concede multiple important points raised by the opposition – in this case that the SB 8 model can be used to undermine judicial review of state laws threatening other constitutional rights, and that there is no limit to the size of the penalty the states can impose. As Roberts emphasized, a fine of one million dollars would create an enormous "chilling effect" on constitutional rights, in the absence of pre-enforcement judicial review allowing people to challenge the law without risking liability if they lose.
For his part, Clarence Thomas wondered whether a federal court could potentially issue an injunction against private parties who might file an SB case, based on the theory that the former can be considered state actors:
[W]hy wouldn't you consider the S.B. 8 plaintiffs to be sort of private attorneys general? If the attorney general or other state officials don't enforce the law, would it be that unusual to consider them as acting in concert with the state to enforce a state-preferred policy?
I'm far from sure that Thomas was satisfied with Stone's efforts to address this issue, which involved an attempt to compare SB 8 to state laws authorizing tort suits (see pp. 47-49 of the oral argument transcript).
At this point, I can't tell which way Thomas is likely to vote in this case. But if your creative effort to attack abortion rights gives even Thomas (perhaps the current Court's toughest critic of Roe v. Wade) pause, it's yet another bad sign for you.
Justices Neil Gorsuch and Samuel Alito seem likely to support Texas. But their two votes aren't going to be enough for Texas to prevail.
If the plaintiffs do win, it seems likely that it will be on the basis that they will be allowed to sue state court law clerks, in order to enjoin them from accepting SB 8 lawsuits targeting abortion providers. This would get around Supreme Court precedent restricting federal courts' power to enjoin state judges. To my mind, the distinction between clerks and judges seems silly and artificial. The whole point of enjoining the former is ultimately to prevent the latter from hearing a case. I would prefer a more straightforward ruling that would empower the abortion providers to seek injunctions against any and all state officials who might facilitate enforcement of SB 8, regardless of whether they are judges or not.
That said, a decision allowing lawsuits targeting the clerks would be good enough for government work! It would still have the effect of neutering the subterfuge that seeks to insulate SB 8 from preenforcement judicial review.
As I have previously emphasized, this case is not about the future of Roe v. Wade and abortion rights. Even if the abortion providers get their day in federal court, the Supreme Court can still choose to overrule or severely limit Roe and other cases protecting abortion rights. They might even do so in the very near future, as they consider the case of Dobbs v. Jackson Women's Health Organization, which raises that very issue.
The real stake in the SB 8 litigation is whether states can use delegation to private litigants as a tool to shield laws threatening constitutional rights from judicial review. Fortunately, it looks like the majority of justices are intent on forestalling that dangerous scenario.
In addition to considering Whole Woman's Health, the justices today also heard oral argument in United States v. Texas, the companion case addressing whether the federal government has the right to sue Texas over SB 8. That case is a closer call than Whole Woman's Health, and the Biden administration might well end up losing it. I will leave the details of that case to commentators who know more about it than I do.
But, as I indicated in my last post on SB 8, US v. Texas becomes far less important if the plaintiffs prevail in Whole Woman's Health. Whether the federal government can file preenforcement lawsuits against laws like SB 8 matters less if there are a wide range of private parties who can do so.