Supreme Court
The Supreme Court is seen at dusk in Washington, Friday, Oct. 22, 2021. The justices have allowed a Texas law that bans most abortions to remain in effect for now, but heard arguments on November 1 over whether the law should be blocked while legal challenges continue. (AP Photo/J. Scott Applewhite)

Near the midpoint of Monday’s oral argument in the twin cases challenging the Texas anti-abortion law, Justice Brett Kavanaugh asked Texas Solicitor General Judd Stone about an obscure amicus brief. The brief, which was submitted to the Court by the Firearms Policy Coalition, a pro–gun rights advocacy group, argues that S.B. 8 “will easily become the model for suppression of other constitutional rights with Second Amendment rights being the most likely targets.” As Kavanaugh explained, “The theory of the amicus brief is that [the law] can be easily replicated in other states that disfavor other constitutional rights.”

A law like that one could, theoretically, say that any gun dealer who sells a lawful firearm to an individual can be sued in state court for, let’s say, a million dollars, even though the Constitution, as interpreted by the Court, gives individuals a right to own handguns. Stone was prepared for the question. In the past, gun owners “have turned to Congress and succeeded,” he said. “The Protection of Lawful Commerce and Arms Act, for example, was specifically passed in response to state tort lawsuits in which there was no immediate federal review that could only at most be brought here.”

Justice Elena Kagan pointed out the implications of Stone’s argument: “Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?” Tut-tut, Stone replied. Texas judges know the law and won’t do anything unconstitutional. The implications were clear: Second Amendment rights are real rights, and we have the votes to make that stick. The “right” to choose abortion—well, that’s a different matter.  

This sort of spooky double entendre echoed throughout Monday’s argument. S.B. 8 is an anti-abortion bill, designed to shut down abortion clinics in Texas, intimidate doctors by threatening them with financial ruin, and prevent thousands of women from exercising a right that the Supreme Court reaffirmed—somewhat half-heartedly, but reaffirmed nonetheless—as recently as last year.

But the twin cases—Whole Woman’s Health v. Jackson and United States v. Texas—aren’t “really” about abortion at all. They are about lawyers’ issues like “preclusive effect,” “proper parties,” “forum non conveniens,” and “traditional equitable remedies.” The issue is whether either the abortion providers or the federal government itself can bring a suit to enjoin it before it is enforced against any individual defendant. The law is an example of what happens when a bright legal mind decides to do something flagrantly illegal and completely rig the legal system to get away with it.

S.B. 8 makes abortion illegal in Texas if performed after about six weeks of pregnancy—well before many women learn they are pregnant. Such a ban is flatly unconstitutional under current doctrine. But the law then provides that no state official—attorney general, prosecutor, sheriff—can enforce its provisions. Only individual citizens can invoke it, by suing the provider who performs an abortion, and suing anyone else who “aids or abets” a woman’s decision to have an abortion. In other words, abortion providers (and perhaps even the Uber driver who takes a patient to a clinic) will be subject to lawsuits that might bankrupt them even if they win.

Any individual—connected to the patient or not—can sue; the suit can be filed in any one of Texas’s 254 counties, even if that requires the defendants to travel long distances to defend themselves. Any citizen who proves that an abortion took place is entitled to at least $10,000 in “damages” plus lawyers’ fees. If a defendant cannot pay, the citizen can demand fees from the defendant’s lawyer. Yet if a defendant wins, they get no fees. The case makes a sham show of following Supreme Court precedent. That precedent says that states may not place an “undue burden” on a woman’s right to choose abortion before viability. Under the Texas law, a defendant can argue that, in this particular case, blocking the abortion would have been an “undue burden”; if they prove it, they can win the case. But they can’t use the Supreme Court’s actual definition of “undue burden,” which the Court defines as a “substantial obstacle” to a “large fraction” of women it affects, not only the specific party.

But wait, there’s more! S.B. 8 says that a defendant who wins one case can’t use that victory to dismiss another case brought by a different plaintiff for the same abortion. Lawsuits, in other words, can be repeated ad infinitum—by each member of a particular church one by one, or in each county in the state—and the defendant has to go through the same thing again. Finally, a defendant who wins an S.B. 8 lawsuit by citing Supreme Court precedent isn’t out of the woods; if (hint, hint) the Supreme Court later overrules that precedent, the defendant must pay the damages after all.

Stone smoothly admitted that “undoubtedly, there are . . . a handful of individual procedural rules inherent to S.B. 8 that are designed to favor this cause of action,” which is roughly like admitting that shooting someone in the leg might complicate their running of a marathon.

Arguing for the United States in the second case, Solicitor General Elizabeth Prelogar pointed out, rather mildly, that “there has never been a law exactly like this one. No state has ever sought to challenge the supremacy of federal law and keep the courts out of the equation in quite the same way.”

S.B. 8 is “law” only because that’s what’s written on top of the piece of paper; it is, in fact, utterly cynical lawlessness on parchment, an open invitation to vigilantism, spying, and personal destruction of abortion providers and anyone else swept into its net.

Though S.B. 8 is something never seen before, the closest precedent is Cooper v. Aaron, the 1957 case requiring the governor of Arkansas to obey a federal court desegregation order. Governor Orval Faubus used the National Guard to block nine Black students from entering Little Rock’s Central High School. A federal court had ordered them to be enrolled at Central High—but Faubus argued that he had not been a party to that lawsuit and thus was not bound to follow the Court’s order.

Civil rights groups filed an emergency petition to the high court on September 8, 1958; the state government responded within two days, and in emergency session the justices heard oral argument on September 11. Barely hours later, on September 12, the Court issued a unanimous opinion rejecting the state’s position. By September 23, the 101st Army Airborne was patrolling the streets of Little Rock to ensure compliance.

Cooper v. Aaron is the only opinion in Supreme Court history signed by all nine members of the Court. The haste and the unanimity underlined the urgency of the opinion’s message: The constitutional right of Black children to enter Central High has a meaning that transcends first-year civil procedure rules. It was not to be “nullified openly and directly” or indirectly by “evasive schemes.”

By the logic of Cooper, the entire Texas state government is bound by current court decisions guaranteeing the right to choose abortion before a fetus is viable. Legislators who passed S.B. 8 broke their oaths; judges who do not dismiss lawsuits designed to nullify abortion rights are, themselves, oath breakers, as are clerks who docket the punitive lawsuits or who record liens against defendants’ property to ensure the payment of judgments, and sheriffs who enforce the judgments. That is true whether they are parties named in an injunction or not. S. B. 8 may be an ingenious evasive scheme, but it is the Constitution it is evading. The abortion providers who brought one of the two cases heard Monday have asked the court to issue a “declaratory judgment”—a binding statement of the law—putting judges and others on notice that these lawsuits are illegal.

During the argument, the justices seemed to break into three groups. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan seemed openly hostile to Texas’s trickery. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch clearly want to allow the law to stay in place until the day—probably years in the future and perhaps never—that an actual case against a provider reaches the Supreme Court. Seemingly in the middle are Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. They may be attracted by the exceedingly narrow rationale proposed by Barrett in dialogue with Marc Hearron, who represented a group of abortion providers. As noted above, the law changes the meaning of “undue burden,” by barring evidence of the general effect of the law on a class of women. Only evidence about one particular patient is admissible. But in fact, Barrett said, the Supreme Court’s test requires “looking at the law as a whole and its deterrent effect,” meaning its effect on other women in similar circumstances as well as this particular patient.

If that is the result, the Court would strike down S. B. 8 but leave legislatures free to tweak the wording and try again. Republican legislatures have already begun to signal interest in such copycat bills.

The proper response of a self-respecting Court would be a unanimous writ of “Get the F*** Out of Here!” Don’t look for that. After Brown, the Supreme Court adopted the view that Brown was law and must be obeyed. I think at least five members of this court think Roe and Casey aren’t law at all—and that they won’t be around long enough for the S.B. 8 issue to really matter.

But gun owners needn’t worry; this Court will protect them. The rest of us, it seems, are on our own.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.