Comment: Texas abortion providers court ‘win’ precedes losses

The limited ruling regarding Texas’ SB 8 foreshadows the losses to come for abortion rights.

By Leah Litman / Special To The Washington Post

The Supreme Court on Friday held that a federal court could hear the constitutional challenge to the notorious Texas Senate Bill 8, the state law that in effect prohibits abortions more than six weeks after a woman’s last period. But that is all the Supreme Court held. For advocates of a woman’s right to choose abortion, the outcome is better than a ruling that the law could not be challenged. But there is little reason to celebrate this decision.

It’s far from clear that the abortion providers’ suit will, in the end, succeed. What’s more, the justices all but offered a blueprint for a state to modify the approach Texas took with this law in order to completely avoid judicial review next time.

A more institutionalist, moderate court might have stated squarely that a law that has largely ended abortion access in the nation’s second most populous state is unconstitutional under existing precedent. Despite the urgings of the court’s three liberals, as well as the chief justice, the court did not do that. It merely held that the procedural design of this particular law — which invites private citizens to sue anyone who helps a woman, in any way, procure an abortion — did not prevent a federal court from enjoining the law (at least in some respects) if the law is unconstitutional.

But that’s a very big “if,” given that the high court appears poised to eviscerate women’s right to an abortion in a case out of Mississippi, which it heard at the beginning of December.

Texas SB 8. was designed to allow the state to end abortion access without having to defend its law as constitutional in court. It did so through its unique enforcement mechanism, involving private lawsuits for damages of $10,000 or more. The idea — treated with unjustified respect by the Supreme Court and the U.S. Court of Appeals for the 5th Circuit — was to remove government officials from the process, supposedly making it impossible for abortion providers (or the U.S. government) to sue to stop the law.

The gambit almost worked. Indeed, the way the court’s opinion is written suggests the gambit might yet achieve its objective in this case; because the court greatly limited the potential relief that abortion providers can obtain.

By a vote of 8-1, the court concludes that the providers’ lawsuit could proceed against certain state licensing officers who oversee the state’s licensing of doctors and nurses. Only Justice Clarence Thomas dissented on that point. By a narrower, 5-4 vote, the court held that the lawsuit could not proceed against the other defendants, including the state court judges, state court clerks, or Texas’ attorney general. On this point, Chief Justice John Roberts and the Democratic appointees dissented. They would have allowed the suit to proceed against at least some of those defendants as well.

Because the providers can only sue state licensing officials, it’s possible that at best they can obtain a ruling that state licensing boards cannot discipline doctors for violating SB 8. In other words, the majority disallowed suits that had much greater potential to generate a ruling that could prevent private lawsuits under SB 8. Yet it’s precisely the threat of those lawsuits that have stopped providers from offering abortions.

Equally troubling, the majority’s analysis seems to allow a state — whether Texas or another — to come back with a revised version of an SB 8-style law that would prohibit suing even the licensing officials. That’s because the majority’s’ conclusion that the providers can sue those officials rests on its assessment that the state, in SB 8, had not withdrawn the licensing officials’ authority to discipline providers for violating state law. If a state wrote a law to remove that authority, it’s not clear the court would allow that lawsuit to proceed. As Justice Sonia Sotomayor wrote in a blistering dissent, “The Court effectively invites other States to refine SB 8’s model for nullifying federal rights.”

And whether the suit against SB 8 is allowed to continue may prove to be moot, if the court decides that no constitutional right to obtain an abortion exists in the first place. And that seems to be where we are headed. The first week of December, the Supreme Court heard Dobbs v. Jackson Women’s Health Organization, the case where Mississippi has asked the Court to overrule Roe v. Wade and uphold Mississippi’s’ prohibition on abortions after the 15-week mark. Mississippi alternatively asked the Supreme Court to nullify Roe — without overruling it — by allowing states, before viability, to prohibit a woman from making the ultimate decision about whether to have an abortion.

The court’s conservatives seemed very receptive to those arguments. Justice Brett Kavanaugh speciously suggested the court could “remain neutral” on the question of abortion by allowing states to ban it, if they wished. And Justice Samuel Alito attempted to draw an analogy between the court overruling Roe v. Wade and the Court overruling Plessy v. Ferguson, the decision upholding public segregation.

Friday’s decision was a very modest victory for the abortion providers, but people should take care not to give the court credit for something it didn’t do. It certainly didn’t reaffirm the right to an abortion. It also failed to make clear that states cannot nullify constitutional rights by insulating unconstitutional laws from judicial review.

Defenders of access to abortion will find little to be happy about in these opinions.

Leah Litman is an assistant professor of law at the University of Michigan and host of the Supreme Court podcast “Strict Scrutiny.”

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