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The U.S. Supreme Court is set to hear oral arguments Monday about the state’s new near-total-ban on abortion that experts expect will focus on the unique enforcement mechanism outlined in Senate Bill 8, rather than the constitutionality of abortion.
Texans and others nationwide monitoring court challenges of the new law have a lot of questions: Is Roe v. Wade at stake? Can SB 8 exist if the enforcement mechanism is blocked? Does the federal government have the legal standing to sue Texas under SB 8? The Dallas Morning News spoke with three legal experts to hear their answers.
Texas’ new restrictions went into effect Sept. 1 after the Supreme Court declined to block the legislation. The law prohibits abortions after six weeks, a point at which most women do not know they are pregnant. SB 8 is unique in that it gives enforcement power to private citizens. They can file lawsuits against anyone who “aids or abets” in an abortion, and, if successful, will receive at least $10,000. This enforcement tactic has allowed SB 8 to sidestep the regulations of Roe v. Wade, Planned Parenthood v. Casey, and other cases that established a constitutional right to abortion.
The Supreme Court is also set to hear oral arguments Dec. 1 for a Mississippi abortion case that focuses on a law that bans abortions after 15 weeks of gestation, which is significantly before the fetal viability timeline outlined in Roe v. Wade. The Mississippi case does not employ the same citizen enforcement mechanism outlined in SB 8. Rather, state officials enforce the law.
Here’s what three legal and political professors at Southern Methodist University — political scientist Cal Jillson, Supreme Court specialist Joe Kobylka and constitutional law specialist Dale Carpenter — had to say about the hearing on Texas’ law; the answers have been edited for brevity and clarity:
Q: Is the new Texas law about overturning Roe vs. Wade? Is the upcoming case from Mississippi more directly about Roe?
Jillson: The most important distinction is that in Mississippi, state officials are implementing the law. In Texas, citizens are implementing the law. The natural legal court challenge to the Mississippi law would be to sue the public officials and have them enjoined from implementing the new law. But, in the Texas law, there’s no state official to sue. That has confused the federal courts. It was intended to. The federal courts have been uncertain on how to proceed.
Carpenter: The Mississippi case squarely presents the issue of overruling Roe v. Wade, and Planned Parenthood v. Casey. The immediate proceedings in the Texas litigation do not involve that issue. They involve issues of jurisdiction and remedy.
Kobylka: The Texas law is about overturning Roe v. Wade. But, that’s not the legal issue. The legal issue is whether Texas can delegate enforcement of a statute to private citizens. The reason they did that was to avoid federal court review.
Q: Do you think the citizen enforcement method will pass constitutional muster with the Supreme Court?
Jillson: No, I don’t think it will pass constitutional muster. The Supreme Court’s principal job is developing rationales that allow the American political system to work effectively within the parameters of the Constitution. Striking down SB 8 has to be done because it would screw up the entire federal system if it weren’t.
Carpenter: I can’t say for sure. Either the court could say, ‘we’re not going to allow states to evade constitutional scrutiny through this sort of unique, unicorn-like mechanism.’ Or, they could say, ‘you can challenge the constitutionality of this law in state court when you get sued. We’ll trust the state courts can do it.’ I could see that case going either way.
Kobylka: I find it hard to believe that the court would countenance a radical diminution in its own and federal court’s powers. If, in fact, they say that federal courts can be precluded from reviewing these kinds of statutes, they’d be essentially denying themselves the capacity to exercise power in individual cases where states behave this way.
Q: How important to Texas’ defense is the mechanism of outsourcing enforcement to private citizens? What happens to the rest of SB 8 if this is struck down?
Jillson: It’s critical. It’s the single pillar upon which the Texas law’s survival depends. If that logic doesn’t hold, then the law goes down in a heap.
Carpenter: If the enforcement mechanism is struck down, there’s no way, practically speaking, to enforce the Texas law. If this happens, or if a court grants an injunction against enforcement, the abortion clinics could continue with the abortions. But, they would run some financial risk because there’s a four-year statute of limitations under this law, meaning you could be liable for up to four years after any single abortion is performed.
I think what might happen is that even if SB 8 is blocked, it would be blocked, or not enforced, on the grounds that you can’t prohibit abortions. But, if the right to abortion is overruled as a result of the Mississippi case, abortion clinics would still be liable for any abortions that they performed in the meantime, while they were relying on the injunction.
Kobylka: The specific question the court is answering here is, ‘may the United States bring suit in federal court to obtain injunctive or declaratory relief against a state court judge?’ So, the courts will decide ‘yes, it can.’ Or, ‘no, it can’t.’ They could go further and say that this statute is clearly unconstitutional, and therefore can be enjoined. Or, it could say, ‘yes, the United States can bring this suit,’ and then send it back to lower courts to hear the arguments about whether or not the law is constitutional.
Q: If the court rules to uphold the enforcement mechanism, could Texas and other states be allowed to incorporate citizen enforcement into other laws and regulations?
Jillson: Yes. It’s a Pandora’s Box. State legislatures around the country, specifically Florida and other Republican-led legislatures, are working on similar laws in their states for abortion, gun rights, freedom of religion, those kinds of things. And, because it’s a Pandora’s box, the Supreme Court will try to close it tightly.
Carpenter: Yes, you can fill in the blank with a constitutional right.
Kobylka: You essentially privatize constitutional rights. Power is power, and it’s a function of who is wielding it. Conservative groups are terrified that if the court says this is okay, then things they cherish in states where they don’t have significant legislative clout can go away. What if a gun control state passes a law that says, ‘citizens cannot carry weapons in public?’
Q: Texas officials argue that the Biden administration’s legal challenge is federal overreach. Does the federal government have the legal standing to seek to block the state’s new abortion law?
Jillson: It’s unclear now whether the federal government through the Justice Department can sue the state of Texas to stop enforcement. The device of not having state officials enforce it, but having citizens enforce it, is novel and has sort of confused the court as to how to proceed. But, at the end of the day, it is highly likely that even this conservative Supreme Court will find a way to permit the Justice Department to pursue its suit against Texas.
Carpenter: It’s not clear whether the federal government has the standing to sue, and it is not clear whether it even has a cause of action to sue. That doesn’t necessarily mean it’s going to lose. But, it does present unique questions.
Kobylka: The argument of the Justice Department is that it’s a federal matter because the Texas law unduly burdens a woman in her exercise of the constitutional right to an abortion. Since the effect is to essentially negate this right, the Supremacy Clause of Article Six of the Constitution means the federal government can take action to protect and preserve federal constitutional rights against state encroachment.
Q: Are there any substantial precedents that the Supreme Court may reference to decide this case?
Jillson: The most relevant one is a series of cases in the state and federal court that challenged the white primary in Texas, concluded in Smith v. Allwright in 1944. The case suggests that since the Texas legislature passed a law that charges citizens with implementation, those citizens are empowered by the state of Texas, so they are acting as state agents.
Carpenter: There are three in particular that I think are going to be interesting.
One is a case called Muskrat v. United States. That case suggests that the sovereign state of Texas can’t be sued as a defendant when its role in the case consists of adjudicating disputes between private parties. The second is a case called Ex Parte Young. That says, generally speaking, federal courts cannot enjoin state courts from hearing lawsuits. That’s exactly what this federal district court did, and what Judge Pittman did in Austin.
And then there is a case called Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc. The United States is currently claiming that its cause of action against Texas is based on what’s known as equity jurisdiction, rather than based on a statute. The Grupo Mexicano case said that federal courts, in the exercise of their equitable powers, are very limited to the kinds of equitable powers that were exercised in the 19th century. And, this is not one of those circumstances.
Kobylka: I don’t know of any clear precedents on this sort of question. But, it’s clear what Texas is trying to do. Texas is trying to make sure that women don’t get abortions in Texas. It’s clear that for now, at least, there is a constitutional right to an abortion that has been since 1973. Those two things are diametrically opposed.