The Roberts Court heard oral arguments on Monday over Texas's ridiculous crowdsourced anti-abortion law, and it didn't exactly go well for the Lone Star State, as Vox's Ian Milihiser explains.
Texas’s anti-abortion law is, Chief Justice Roberts wrote previously, “not only unusual, but unprecedented.” It effectively prohibits all abortions after the sixth week of pregnancy, but does so through a scheme that, in Justice Sonia Sotomayor’s words, was “engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”
Under a doctrine known as “sovereign immunity,” private plaintiffs typically are not allowed to sue a state directly in federal court. But the Court held in Ex parte Young (1908) that private plaintiffs may sue the state official tasked with enforcing the law that such a plaintiff wishes to challenge. So, for example, if a law permitted the state attorney general to bring criminal proceedings against abortion providers, a party challenging the law would sue the attorney general.
But SB 8 explicitly forbids any “officer or employee of a state or local governmental entity” in Texas from enforcing it. Instead, it may only be enforced through private lawsuits. These lawsuits may be filed by “any person” who is not an employee of the state against anyone who either performs an abortion or who “aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant.
So the idea is that no one can sue to stop the law because no state official is a proper defendant.
This structure, it should be noted, does permit abortion providers to perform an abortion that violates SB 8, wait until they are sued, and then argue in Texas state court that SB 8 is unconstitutional. The problem with that approach, as Hearron told the justices, is that “no rational abortion provider would violate this law.”
Anyone who does so could be bombarded with thousands of lawsuits, forced to hire an army of lawyers to defend against them, and then be ordered to pay a bounty of at least $10,000 — which means that there is no upper limit on that bounty.
The abortion provider plaintiffs’ primary argument is that, under Young, they may sue state court judges who hear SB 8 lawsuits, and the state court clerks who docket those cases. Yet, while the justices did spend a good deal of time discussing whether judges and clerks are proper defendants, their most revealing questions focused on whether a law like SB 8 should be allowed under any circumstances.
The three most conservative justices — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — appeared likely to uphold Texas’s scheme, although Thomas did ask some tough questions of Stone, the Texas lawyer. Thomas noted that SB 8 is unlike other laws permitting lawsuits against private defendants because other laws typically only allow plaintiffs who’ve been injured in some way to file suit.
SB 8, by contrast, effectively deputizes anyone who is not a state official to enforce the state’s anti-abortion law — regardless of whether a particular plaintiff was actually injured by the person they are suing. As Thomas put it, SB 8 plaintiffs are “acting in concert with the state” to enforce the state’s law.
The three liberal justices, meanwhile, left no doubt that they view SB 8 as unacceptable. Sotomayor, for example, pointed to the Court’s school segregation decision in Cooper v. Aaron (1958), which held that the Constitution “can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes.”
Justice Stephen Breyer, meanwhile, quoted early 20th century Justice Oliver Wendell Holmes, who said, “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.” SB 8, Breyer suggested, would prevent the Court from striking down state laws.
Roberts, meanwhile, seemed to share the liberal justices’ concerns. He imagined a slightly different version of SB 8, where the minimum bounty was $1 million instead of just $10,000 — and warned that no one would reasonably be willing to risk violating such a law because the cost of losing would be so high. He also criticized Texas for passing a law that allows abortion providers to be sued anywhere in the state, rather than following the ordinary rules governing which legal venues are appropriate.
So that leaves Kavanaugh and Barrett as the justices in the middle, and both appeared sympathetic to the plaintiffs’ arguments.
Indeed, Justices Kickstand and Karen seemed rather worried about the argument that blue states could do to guns what Texas is trying to do to abortion: set up a bounty system to stop gun purchases in the state, and use citizens to enforce it. This made Kavanaugh very upset, actually.
If SB 8 is upheld, and the Court permits the use of private bounty hunters to limit constitutional rights, another state could easily use this mechanism not just to restrict abortions and reproductive care, but also to chill other constitutional rights. As the Firearms Policy Coalition argued in its amicus brief, “it takes little in the way of creative copying for States hostile to the Second Amendment — New York, California, New Jersey, Hawaii, etc. — to declare that the ownership or sale of a handgun is illegal ... and set up a bounty system with the same unbalanced procedures and penalties adopted by Texas in this case.”
This possibility seemed to bother Kavanaugh, who asked about whether a state could authorize a million-dollar bounty against anyone who sells an AR-15, a popular form of semi-automatic rifle.
Even more significantly, Kavanaugh appeared to echo the liberal justices’ concerns that Texas is gaming the system. “There’s a loophole that’s been exploited here,” he told Stone, and suggested that the question before the Court in the Whole Woman’s Health case is “should we extend the principle of Ex parte Young to close this loophole?”
Stone, meanwhile, had a disastrous exchange with Kavanaugh where he argued that someone targeted by an SB 8-style law would have to lobby Congress to enact a federal law protecting their constitutional rights. It “would be difficult to get legislation through Congress,” Kavanaugh deadpanned in response to Stone — an acknowledgement the federal government’s dysfunctional legislative branch is not likely to do much of anything at all.
Barrett, meanwhile, played her cards a little closer to her chest than Kavanaugh, but she seemed bothered that there was no adequate way to challenge SB 8 unless the federal judiciary intervenes. At one point, she expressed concern that abortion providers “cannot get full review” of the law in state court. At another, she questioned whether an SB 8 defendant would be able to get a broad injunction blocking the law in state court.
So, while it remains to be seen how each justice votes, it appears that there may be as many as six votes to allow a lawsuit against SB 8 to move forward. The possibility that any constitutional right could be undermined by an SB 8-style law appeared to bother at least some of the conservative justices who ordinarily vote against abortion rights.
The good news is the right to sue Texas over this appears to be in the cards. The bad news is if the court overturns Roe v Wade next year, it's a moot point since Texas and any other Republican state will be able to ban abortion outright.
A win to allow Texas to be sued and the law enjoined would be cold comfort for tens of millions of women headed to the forced breeding scenario of Gilead.
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