On Monday, the Supreme Court heard oral argument on two challenges to S.B. 8, the Texas law that effectively bans all abortions six weeks after a pregnant person’s missed period. The law went into effect on September 1st, after the Supreme Court declined to vacate the Fifth Circuit’s stay of the district court’s grant of a preliminary injunction. That decision, rendered on the Court’s “shadow docket,” led to a flurry of criticism and, polling suggests, harmed the Court’s public standing. While the Supreme Court again declined to vacate a subsequent stay issued by the Fifth Circuit, it did order expedited briefing and oral argument.
Texas’s pre-viability ban is unconstitutional under current Supreme Court precedent— though that may be upended by Dobbs v. Jackson Whole Woman’s Health, which will be argued on December 1st—but, at issue in Monday’s cases were the procedural barriers S.B. 8 erects to making such a challenge in the first place. That is because of the law’s unusual structure: it creates a private right of action against anyone who performs, “abets,” or obtains an abortion, with at least $10,000 in damages (and costs) for the individual who brings suit if they prevail.
The justices first heard oral argument in Whole Woman’s Health v. Jackson. There, abortion providers are suing state court judges and clerks to enjoin them from docketing lawsuits brought by private citizens under S.B. 8. Texas argued that the providers are barred from pre-enforcement challenges in federal court under Ex parte Young, which permitted lawsuits in federal court to enjoin state officials, but not state courts, from enforcing unconstitutional laws. But Justices Kagan and Kavanaugh said that Texas’s argument directly contradicted with the broader principle set forth in that case and its progeny. Indeed, as Justice Kagan explained in a remarkable exchange, “the entire point of this law, its purpose and its effect, is to find the chink in the armor of Ex parte Young,” but “Ex parte Young set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional laws” that Texas defies here. In doing so, she continued, Texas flouted the “even broader principle that states are not to nullify federal constitutional rights.” And Justice Kavanaugh, citing an amicus brief, was concerned that ignoring that principle in this instance would invite similarly structured laws directed at other constitutionally protected rights, like the Second Amendment.
Chief Justice Roberts, who had voted with the liberal justices to vacate the Fifth Circuit’s stays, was also skeptical of Texas’s arguments, questioning whether a hypothetical “bounty” of one million dollars would sufficiently chill constitutionally protected conduct such that “federal court review prior to the end of the state court process” was appropriate. When the Texas Solicitor General said that it would not change the state’s argument, the Chief Justice noted that this would insulate the law from any review because no one would have the “fortitude to undertake the prohibited conduct . . . [and] it is only by undertaking the prohibited conduct that you can get into federal court.” Indeed, as the providers’ counsel noted, the liability is already prohibitive: S.B. 8 authorizes suits in each of Texas’s 254 counties and “provides that a victory in one has no preclusive effect in any other,” in addition to the “draconian” damages/fee structure. And, as Justice Barrett noted, Texas further attempted to prevent review of the constitutional question by changing the “substantive rules” as well as the procedural rules at the heart of the case with a provision that says that a defendant must show that an award against them—in a vacuum—would reach the level of an undue burden on people seeking abortions.
Justice Gorsuch, joined by Justices Thomas and Alito, was skeptical of the providers’ arguments. Unlike the Chief Justice, he seemed unbothered by the particulars of the providers’ chilling effect argument, noting that “laws often have chilling effects on the exercise of constitutionally protected rights that can only be challenged defensively,” such as defamation laws that chill speech and pandemic restrictions on forms of religious exercise.
While six justices seem prepared to allow the providers’ suit to proceed, the fate of United States v. Texas is less certain after that oral argument. U.S. Solicitor General Prelogar framed the United States’ interest as weighty but narrow: a “sovereign interest in ensuring that states cannot flout the supremacy of federal law” through laws that attempt to “block[] the traditional mechanisms for judicial review.” But here, Justices Thomas, Alito, Gorsuch, and Roberts used their questions to express their skepticism that a rule that allowed the United States to sue Texas over S.B. 8 could, in a principled fashion, be limited only to analogously structured laws. Prelogar maintained that such a narrow rule could be derived: it wasn’t, she emphasized, that a constitutional right was under attack by a state but rather that the attack also foreclosed the pre-enforcement remedies afforded by Section 1983 and Ex Parte Young that would otherwise safeguard against such affronts to federal supremacy. Still, other questions took the discussion back to the providers’ case, suggesting that a split decision—and thus an opportunity for one mode of pre-enforcement review—is likely.
Audio and transcripts from both oral arguments are available here.