Will Supreme Court allow constitutional oversight to be outmaneuvered by Texas abortion law?

The Supreme Court held oral arguments yesterday in twin lawsuits challenging SB8, the Texas abortion law that violates Roe v. Wade by banning abortions after six weeks. Although the cases challenge an unconstitutional abortion law, Roe was barely mentioned.

At stake instead in these cases is the ability of state legislatures to flout federal law itself — including the top law of the land, the Constitution — and insulate unconstitutional state laws from any federal court oversight whatsoever. It’s this topic that consumed hours of the court’s time, and even the newest, especially controversial justices — Brett Kavanaugh and Amy Coney Barrett — seemed unwilling to tolerate Texas’s cynical manipulation of our system of laws. 

Whew. 

Under the typical “pre-enforcement review” process for newly restrictive abortion laws, states have to prove their constitutionality before they take effect. As a result, states cannot constrain abortions without engaging in months of litigation, which could wind up striking down a new law anyway.

Frustrated over not getting their way, the lawmakers in the Texas legislature devised a novel scheme: outsourcing enforcement of the ban to unnamed private parties who are incentivized to sue anyone who “aids and abets” an abortion after six week in Texas, for up to $10,000. Normally, of course, it’s government that enforces laws via the executive branch (presidents, federal agencies, governors, police officers and prosecutors). If an individual doesn’t like what government is doing — and believes that government is violating a constitutional right — that individual sues the government.

By entrusting private vigilantes with law enforcement authority under SB8, Texas left nobody to sue to stop the law. In other words, the law is an attempt to end run around accountability and the rule of law itself. In the words of the newly installed Solicitor General of the United States, Elizabeth Prelogar, it’s a challenge to the “supremacy” of federal law.

The question before the Supreme Court thus is: Does the Constitution still control in the United States, or can federal court oversight be outmaneuvered through procedural trickery in state laws?

Of course, as Justices Kavanaugh and Sonia Sotomayor aptly noted in some detail during oral argument, this question has massive implications for all kinds of constitutional rights, including Second Amendment rights to own a handgun in the home, religious and free speech rights under the Constitution, and other “implied” rights that are just as sacrosanct in America, such as the right to marry without government deciding the terms. 

If Texas gets away with outmaneuvering federal court review of its unconstitutional restriction on abortion rights, all proverbial hell could break lose under our system of laws — well beyond abortion access. As James Madison explained in Federalist No. 62, a government with unpredictable and arbitrary laws “poisons the blessings of liberty itself.”

The Texas law gave rise to two separate lawsuits, which reached the Supreme Court together on an expedited basis. Initially, abortion providers sued, but because the Fifth Circuit U.S. Court of Appeals refused to halt the law while its unconstitutionality was litigated, the Department of Justice stepped in with a separate attempt to suspend the law so that the constitutional right would be honored in Texas in the interim. The legal issues around the bounty-hunter aspect of the law were slightly different in both cases. But in both cases, Texas took the position that the federal courts have no say in the matter. 

For the abortion providers, there was a lot of discussion around an old case from 1908 called Ex parte Young. That case involved a similar attempt to bypass judicial review when the state of Minnesota passed laws limiting what railroads could charge and criminalizing violations of those limits. Shareholders of the railroads sued, arguing that the laws violated the Due Process Clause of the 14th Amendment. Because the 11th Amendment bans suits in federal court against states, Minnesota couldn’t be sued, so the plaintiffs more specifically sued the attorney general of Minnesota to stop him from enforcing the law.

Faced with an argument similar to the one Texas is making with SB8 — that there is no one to sue so the law cannot be challenged — the Supreme Court engaged in what amounted to a fiction to ensure that unconstitutional laws get their day in court.

The court reasoned that when a government actor seeks to enforce an unconstitutional law, that actor cannot be said to be acting on the state’s behalf, because states aren’t in the business of enforcing unconstitutional laws. This reasoning established a fiction because state employees are still being paid by the state even if they are taking actions that violate federal law. The court thus theoretically stripped such actors of their government status for purposes of getting around the 11th Amendment.

The court could very well do the same thing in this case. At oral argument yesterday, Justice Kavanaugh noted that Ex parte Young resolved a novel procedural question, and that there’s no reason why the modern court can’t do the same in the Texas case. The abortion providers’ argument is that court clerks facing vigilante complaints under SB8 in Texas are much like the Minnesota attorney general in Ex parte Young — by docketing an unconstitutional case, they are acting outside the scope of their authority, and can thus be sued. 

To be sure, Justices Samuel Alito and Neil Gorsuch appeared hostile to the abortion providers’ arguments, but the others — including Chief Justice John Roberts and Justice Clarence Thomas — were notably not.

As a matter of commonsense legal principles, this is not a hard one. Unconstitutional laws should be susceptible to federal court challenges. And if there is no historical precedent for allowing a challenge in federal court to this kind of unconstitutional law, the Supreme Court is obligated to establish one.

That there appears to be dissent on the court to something even this foundational suggests that the subject matter of these cases — abortion rights — is on the justices’ minds. If a less controversial right, like free speech, were the target of SB8, it’s hard to imagine any Supreme Court justice would conclude that the court has no constitutional power to review it.

For Roe, the real test will be in December, when the court hears arguments on Mississippi’s 15-week ban on abortion in Dobbs v. Jackson Women’s Health Organization. That’s where the willingness of the newest justices to adhere to the existing law of the land will really be put to the test.

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,”  “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle