• Show Notes

By Melissa Murray

Dear Listener,

As the clock crept toward midnight on Tuesday, August 31, court-watchers were anxiously awaiting a ruling from the Supreme Court in a challenge to SB 8, a Texas law that prohibits abortion at just 6 weeks of pregnancy.  The law is the latest in a litany of ever-more restrictive abortion laws that have been passed in recent years, an uptick that likely reflects the increasingly conservative character of the Supreme Court and the lower federal courts.  With former President Trump’s appointments of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court and a steady stream of conservative judges appointed to the lower federal courts, states like Alabama, Mississippi, and Texas have doubled down on their efforts to legislate abortion rights out of existence, enacting so-called heartbeat laws that prohibit abortion at 15 weeks, 12 weeks, and now, six weeks of pregnancy. 

These laws obviously violate the Supreme Court existing precedents, all of which make clear that states may not ban abortion before the point of viability—typically marked at 23 or 24 weeks of pregnancy.  Accordingly, when these laws are passed, they are immediately challenged with abortion providers suing the state officials charged with enforcing the law.  And typically, when these suits are brought, lower federal courts issue a preliminary injunction, preventing state officials from enforcing the law while the legal challenge is pending. For example, in Roe v. Wade, Roe referred to the plaintiff, Jane Roe, and Wade referred to Henry Wade, the Dallas County District Attorney charged with prosecuting violations of the challenged criminal law.

But Texas’s law was purposely crafted to avoid this common fate.  Recognizing that a ban on abortion at six weeks would be immediately challenged and enjoined, Texas did something devilishly cynical—it prohibited any state official from enforcing the law, and instead, deputized private citizens to undertake the task of enforcement.  By the law’s terms, individual Texans may file a civil lawsuit against anyone who provides an abortion in Texas, or who “aids and abets” another in providing or obtaining an abortion in Texas.  And if the thrill of filing suit against a neighbor is not enough to spur a Texan to action, the prevailing plaintiff is entitled to recover $10,000 and attorney’s fees from the defendant.  

This private enforcement mechanism does two things: First, as a practical matter, it isolates pregnant people from any network of support that they might avail themselves of in pursuing their constitutional right to an abortion.  By the law’s terms, giving someone money for an abortion, or even driving them home from the clinic, may constitute aiding and abetting—exposing the individual to a lawsuit, legal fees, and the prospect of paying $10,000 in damages. These penalties are intended to deter individuals from providing an abortion or even helping someone to obtain an abortion.

But, second, and perhaps most importantly, the private enforcement mechanism makes it really difficult to challenge the law—and particularly, to enjoin its enforcement while it is being challenged.  Remember, by its terms, SB 8 does not permit any state official to enforce it—instead, it must be enforced “exclusively through . . . private civil actions.”  If no state official is responsible for enforcing the law, then there is no one to sue in order to block the law from going into effect.  

To be sure, this does not mean that the law’s constitutionality cannot ever be challenged—once the law goes into effect and is enforced, those who have been sued may challenge the law’s constitutionality in court.  But where the law’s novel enforcement mechanism succeeds is in making it almost impossible to seek pre-enforcement review of the law—that is, to challenge the law’s constitutionality and enjoin the state from enforcing it while its constitutionality is being determined.  And to be very clear, preventing restrictive abortion laws from going into effect and being enforced is absolutely the name of the game in jurisdictions that are hostile to reproductive rights.  Once an abortion restriction goes into effect, it can severely limit abortion access, reducing the number of providers available to perform abortions or imposing requirements that are so onerous and cost-prohibitive that clinics cannot comply and instead shut down completely.  And even if the law ultimately is held unconstitutional, clinics that are shuttered as a result of a law taking effect may not necessarily bounce back and re-open when the law is ultimately invalidated. 

An earlier Texas abortion restriction, HB 2, is instructive on this point.  Enacted and signed into law in 2013, HB 2, among other things, required abortion providers to secure admitting privileges at a nearby hospital.  Although some provisions of the law were enjoined from enforcement while the lawsuit challenging its constitutionality made its way through the courts, the admitting privileges law was allowed to go into effect.  And its impact was significant.  Texas, the second-most populous state in the Union, went from having 42 abortion clinics to having just 19.  Although the Supreme Court, in 2016’s Whole Woman’s Health v. Hellerstedt, ultimately invalidated the admitting privileges requirement, the Court’s decision did not return the landscape of abortion access in Texas to its pre-HB 2 levels.  Many of the clinics that shuttered remained shuttered.

Which is one of the reasons why the Supreme Court’s handling of SB 8 sounded so many alarms.  After remaining silent while the law’s September 1 operative deadline went into effect, the Court waited a full 23 hours before issuing an opinion on the matter.  In that opinion, a 5-4 majority of the Court denied the providers’ application for injunctive relief, reasoning that the law presented “complex and novel antecedent procedural questions” that might not be resolved in the providers’ favor, as is required to obtain an injunction.  Curiously, the majority said virtually nothing about the law’s substantive problems, acknowledging only that a ban on abortion at six weeks “raised serious [constitutional] questions.”  

By remaining silent right up until the deadline for a pre-enforcement injunction had lapsed, the Court allowed a law that raises serious—and obvious—constitutional questions to go into effect.  And, by denying the providers’ request to block the law, the majority essentially rewarded Texas’s canny ploy to avoid pre-enforcement review, allowing the state to usher into effect a law that would have been immediately enjoined if the state was responsible for enforcing it. 

Conservative pundits claim that the majority’s decision is a nothingburger and that Roe v. Wade remains good law in Texas and everywhere else.  But this misses the functional point. Though procedural in nature, the majority’s decision had major substantive implications—points the four dissenters raised in separate writings of their own.  Justice Sonia Sotomayor issued a blistering dissent, in which she was joined by Justices Breyer and Kagan.  There, she called out the majority for, as she put it, “bur[ying] their heads in the sand” and refusing “to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”  In a lengthy footnote, she also identified the “immediate impact” of the Court’s inaction, recounting the “waiting rooms. . . ‘filled with patients’” stranded in their pursuit of care because “many abortion providers . . . ceased providing abortion care” once the law went into effect at midnight on Wednesday.  Her point was hard to miss: The majority did not overrule Roe as a formal matter; but its “procedural” ruling had the functional effect of negating Roe’s protections for millions of Texans.  

Like Justice Sotomayor, Justices Kagan and Breyer noted the challenged law’s constitutional infirmities, but also pointed to the unorthodox procedural mechanisms by which the majority had effectively hobbled abortion access in Texas.  Noting that “a woman has a federal constitutional right to obtain an abortion during [the] first stage [of pregnancy],” Justice Breyer insisted that the Court should have granted the petitioners the requested injunctive relief.  Indeed, as he explained, “[w]e have permitted those whom a law threatens with constitutional harm to bring pre-enforcement challenges to the law where the harm is less serious and the threat of enforcement less certain than the harm (and the threat) here.”  Acknowledging the law’s unusual enforcement regime, Justice Breyer, insisted that it was not determinative—particularly in view of the federal judiciary’s duty to “to protect an individual from the invasion of a constitutional right.”

Justice Kagan sounded similar themes, but focused her critique on the use of the Court’s shadow docket as vehicle for dismantling abortion access in Texas.  The term “shadow docket” refers to the Court’s calendar for resolving emergency appeals and procedural case-management issues.  The shadow docket is different from the Court’s merits docket, the calendar of regular cases for which the Court grants certiorari and requires full briefing, oral argument, and issues lengthy substantive opinions.  The media usually calls our attention to cases on the merits dockets, highlighting oral arguments and discussing the Court’s decisions in merits cases.  Not so for the shadow docket.  Cases come to the shadow docket on an ad hoc, expedited basis, and the issues raised typically are resolved through spare, often unsigned, opinions without the benefit of briefing and oral argument and without much explanation and reasoning.  The majority’s opinion on Wednesday night was notable in that it was lengthier than many shadow docket rulings—it was a full paragraph and a half.  

The Chief Justice, no fan of abortion rights, agreed that the shadow docket was ill-suited as a venue for resolving the “particularly difficult” questions that SB 8 presented.  As he observed, the Court was asked to resolve a question of first impression “in the course of two days,” without the benefit of adjudication by the lower federal courts, and without the full briefing and oral arguments that attend cases heard on the Court’s merits docket. 

In recent years, many scholars have echoed the Chief Justice’s concerns about decision-making on the shadow docket.  As they argue, because of its limited briefing, expedited turnaround times, and spare decisions, the shadow docket is rightly criticized as lacking the deliberation and transparency that attend cases decided on the merits docket.  And others have noted that these expedited, time-pressured rulings often go beyond quotidian questions of procedure to effect substantive shifts in jurisprudence—the kinds of shifts that the public would expect to be argued and explained in briefing, oral argument, and ultimately, a detailed opinion.  

But, as Steven Vladeck, a law professor at the University of Texas at Austin observed, it was not just that the Court’s Wednesday night ruling “used an unsigned and barely explained order to short-circuit the constitutional rights of millions of Texas women,” it was that the majority’s indifference to abortion rights was a significant departure “from its aggressive interventions in the past year in religious liberty cases.”  In those cases, which were also decided on the shadow docket, the Court embraced a novel vision of the Free Exercise Clause, one that prioritized religious freedom ahead of other concerns, including public health.  In her dissent, Justice Kagan echoed this point: “the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”

But whether it was done in the shadows or in a lengthy opinion that explicitly overrules Roe v. Wade and Planned Parenthood v. Casey, for many Texas women, SB 8’s impact is the same.  As of September 1, 2021, abortion providers, fearful of drawing legal fire from neighbors now deputized to function as private attorneys general, have ceded the field, declining to provide abortions, even as they know that, as a formal matter, Roe and Casey protect a woman’s right to choose.  It is a battle of form versus function.  And on Wednesday, a majority of the Court picked its side. 

Stay Informed, 

Melissa