Supreme Inaction: Words from the Bench and Implications of Texas’s S.B. 8

Photo: Texas State Capitol, Courtesy of Google Images.

In the late hours on Wednesday, September 1, the Supreme Court of the United States denied an emergency request by abortion and women’s health providers for an injunction barring enforcement of Texas’s Senate Bill 8. S.B. 8 is a restrictive law that bans most abortions after as early as six weeks of pregnancy and allows private citizens to file civil lawsuits against abortion providers.

The late-night decision arrived by way of the Supreme Court’s shadow docket (a topic that has been previously written about here).  Chief Justice Roberts and the Court’s three liberal justices, Justice Breyer, Justice Sotomayor, and Justice Kagan, all dissented.

S.B. 8; or, The Texas Heartbeat Act

Texas Senate Bill 8, also known as the Texas Heartbeat Act, prohibits physicians from knowingly performing or inducing abortions if they can detect a fetal heartbeat.  This includes the kind of cardiac activity that usually occurs around the sixth week of pregnancy.  Additionally, the law provides that enforcement will be carried out through private civil actions exclusively.  In other words, “any person,” other than an officer or employee of a state or local government entity in the state of Texas, may sue a person–which may well include organizations such as insurance companies–who provides or intends to provide an abortion after six weeks or who helps or intends to help a woman obtain an abortion after six weeks.  Should a claimant prevail in one of these suits, courts will award injunctive relief to prevent the abortion as well as a minimum of $10,000 in damages for each abortion that the defendant performed or induced.  Finally, the law expressly allows these suits to be brought in any county in which the events took place; any county of residence for the defendant; or any county of residence for the claimant.  Upon bringing a civil action, it may not be transferred to a different venue without the written consent of all parties.

In Their Words

As previously mentioned, the vote was 5-4.  Each of the dissenting justices penned a separate opinion.  Chief Justice Roberts began by noting the “not only unusual, but also unprecedented” schema of a law that delegates the enforcement of the prohibition on abortion to the “populace at large,” rather than to the state.  He further described how this civil structure allows the State of Texas to insulate itself from responsibility for enforcing the law.  Chief Justice Roberts concluded by stating a desire to address the issues after a full briefing and oral arguments rather than in the course of “two days.”

Justice Breyer began his dissent by pointing out that women have a federal constitutional right to obtain an abortion by way of Planned Parenthood of Southeastern Pa. v. Casey and Roe v. Wade and emphasizing that S.B. 8 delegates the power to prevent abortions to private individuals.  He went on to note the imminent and serious harm the Texas law will likely have on women because “clinics will be unable to run the financial and other risks that come from waiting for a private person to sue”; rather than run such risks, clinics will close and deprive care from women seeking abortions in Texas.

Justice Sotomayor sharply criticized the majority decision.  She called the order “stunning,” and added that the majority “opted to bury their heads in the sand” on a state law that is “flagrantly unconstitutional.”  Justice Sotomayor also disapproved of the Court’s practical punt on the issue of constitutionality because of “procedural complexities.”  Sotomayor gave a brief overview of S.B. 8 and described the law as a “near-categorical ban” on abortions because at six weeks many women are unaware they are pregnant.  She noted that the law circumvents precedents restricting the States from imposing an undue burden on a woman’s ability to obtain an abortion and the Texas Legislature effectively “deputized” state citizens as “bounty hunters,” to make the law more complicated for federal courts to challenge.  Justice Sotomayor concluded with a footnote describing the immediate impact of the Court’s inaction–she detailed an account from one applicant that reported clinic waiting rooms filled with patients urgently seeking care mere hours before the Act took effect at midnight.

Justice Kagan gave the final dissenting opinion.  She began by acknowledging that the Court had, in essence, rewarded Texas’s tactics in insulating its law from judicial review by greenlighting the Act without full briefing or argument.  Justice Kagan concluded with an admonishment of the recent rise of the Court’s shadow docket as a departure from the “usual principles” of appellate process.

What Comes Next?

To begin, the dissenting justices make clear that the Texas law will have grave consequences for women–the abortion providers and advocates in the matter indicate at least 85% of Texas abortion patients will be prevented from seeking care.  People of color, people living in rural areas, and young people will bear much of the S.B. 8 burden.  As studies have shown, outlawing abortions does not eliminate their necessity; this law is poised to make getting an abortion in Texas a near-insurmountable task and increases the likelihood that women may be forced to resort to an illegal abortion under unsafe conditions.  Moreover, patients question whether and how they can get an abortion outside of Texas.  Travel distance, for example, is a particular challenge for those seeking care.

The structure of the S.B. 8 makes it especially unique.  The usual pathway of blocking an unconstitutional law requires naming state officials as defendants because they enforce the law.  Here, because the law deputizes private citizens to enforce the law by suing anyone who performs or induces an abortion, there are no specific defendants to enjoin from enforcing the law.  In the future, it is very possible that other states may use a similar private-citizen-enforcement scheme for abortion laws, or even other laws restricting constitutional rights.

Finally, this case arose on the Supreme Court’s shadow docket.  This mechanism is becoming an increasingly favorite tool of the Supreme Court.  This Term alone, there have now been five shadow docket rulings with four public dissents.  These dissents provide the only jurisprudential analysis of the legal issues implicated by these orders.  What was once simply a body of decisions that “defied procedural regularity,” has, in recent years, become a regular practice that allows the Supreme Court to hand down one-to-two sentence summary decisions late at night in controversial cases–such as federal executions.  Bipartisan chagrin about the shadow docket as a vehicle for partisan decisions remains since the hearing from the House Judiciary Committee on the shadow docket in February 2021.  In the waning days of August 2021, two other major shadow docket orders were handed down regarding the “remain in Mexico” policy and the CDC’s eviction moratorium.  Whether Congress will step in, or the Supreme Court will continue to provide little transparency in justifying their decisions to the public is yet to be seen.

The Supreme Court has agreed to take up a Mississippi abortion case this Term and will issue a ruling in June 2022.  The Texas Heartbeat Act will almost certainly make an appearance in oral arguments this November.

August Mustillo
About August Mustillo (5 Articles)
August Mustillo is a third-year law student at the Campbell University School of Law and currently serves as Editor-in-Chief for the Campbell Law Observer. August is from Denver, Colorado, and earned his undergraduate degree from the University of Arizona, majoring in Law with minors in Business and Classics. His interests include intellectual property law, cultural property law, and he hopes to one day compete on Jeopardy!