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A friend recently asked me if I had heard about what was going on in Texas… being that I’m from Texas.  I’ve waited to form an opinion on the Supreme Court’s decision not to block the law until I could read the opinion.  There was just something too “off” with the Court allowing the law to stand while not having revisited Roe v. Wade to not be skeptical about the media’s portrayal of the law and the Supreme Court’s decision and people’s reaction to it.  So I finally am sitting down to read the opinion and below is my digest of what the Court did and did not do. 

To begin with Justice Roberts, wrote a dissenting opinion joined by Justice Kagan and Breyer.  It always kind of delights me to see Roberts joining an opinion with the liberal Justices, but then again that’s just a sign of how far right the rest of the Court has gone that Roberts is now considered a centrist.  

Procedural posture:  The Texas law came to the Supreme Court on a request for a preliminary injunction, which would have been an order preventing the law from going into effect until the merits, i.e. the substance, of the law could be analyzed to determine its Constitutionality. 

** To obtain a preliminary injunction, a party must show that 1) they are likely to succeed in their challenge to the law on its merits; and 2) that the failure to obtain an injunction will result in irreparable harm.  See Nken v. Holder, 556 U. S. 418, 434 (2009); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (citing Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008)).

The law in question:  Texas’s new law, SB 8 is unique in that it gives individual citizens a private cause of action against anyone who performs, aids, or abets an abortion after six weeks of pregnancy.  In other words, it gives an individual, not the State government, the right to “prosecute” or to sue someone.  This aspect of the law is important because it serves as the reason the Court found it did not need to intervene at this stage since the defendants in this case, judges and the State government, against whom the injunction was sought, were not the ones with the power to enforce the law in the first place.  Therefore, they were the wrong parties to seek to enjoin. 

The law does not per se prohibit a woman from obtaining an abortion nor does it allow for a suit against the woman who has obtained an abortion (although the practical effect is to prevent a woman from obtaining an abortion).  The law provides defenses to a suit that include (1) the defendant has standing to assert the third-party rights of a woman or group of women seeking an abortion; and (2) the defendant demonstrates that the relief sought by the claimant will impose an undue burden on that woman or that group of women seeking an abortion.  Both of these defenses act to create a reason for this law to come before the Supreme court as the standing defense depends on a determination of standing by the Supreme Court and the undue burden defense explicitly prohibits a finding of undue burden by (1) merely demonstrating that an award of relief will prevent women from obtaining support or assistance, financial or otherwise, from others in their effort to obtain an abortion; or (2) arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion.  Previous rulings by the Court have determined whether or not a woman’s right to an abortion is infringed upon by analyzing whether the State’s has created an “undue burden” on the exercise of that right.  Thus, the law attempts to limit the Supreme Court’s ability to analyze the law under the same rubric as previous cases as most anticipates a dispute over both of these defenses.

Majority Opinion: determined that the applicants for the injunction did not met their burden of succeeding on the merits after raising that the Court has the power to enjoin people from enforcing laws, not the laws themselves, and that in this case, the defendants and individual respondent had indicated they could not or would not enforce the law — taking from the Court the power to issue an injunction.

Justice Roberts (joined by Kagan & Breyer): would have granted the injunction to be able to determine at this early phase whether a state can avoid responsibility for its laws in such a manner.  Justice Roberts also underscored that “the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”  And that even though “the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented.”

Justice Breyer (joined by Kagan & Sotomayor): gets straight to the point as to why he would have granted the injunction saying that, “a State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or proscribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. The applicants persuasively argue that Texas’s law does precisely that.

He then explains why the failure to grant the injunction will result in real harm, citing for example Planned Parenthood posting on its website that due to SB 8, they are unable to provide abortions, along with the threat of suit leading to the closure of abortion clinics thereby denying many women abortion access.

Then he says something really weird about putting very old and very important legal wine into not very new procedural bottles.  What?!?

Justice Sotomayor (joined by Breyer & Kagan): is shocked and obviously upset by the majority being willing to allow the State government to shield itself from an injunction by having delegated the enforcement of SB 8 to private individuals to do what the state could not do: “impose an undue burden on the woman’s ability to obtain an abortion of a nonviable fetus.”  June Medical Servs. L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in judgment) (slip op., at 5) (citing Roe v. Wade, 410 U. S. 113 (1973) (internal quotations omitted).)  

Justice Kagan (joined by Breyer & Sotomayor): goes for the jugular by referencing the Court’s “shadowdocket decisionmaking”—“which every day becomes more unreasoned, inconsistent, and impossible to defend.”  She says this because the majority came to its decision having “reviewed only the most cursory party submissions, and then only hastily.”

Hot take: While it is certainly terrible that as of September 1, 2021 there have been vigilantes waiting to sue someone for $10,000 for helping a woman to obtain an abortion after six weeks of pregnancy, the Court’s decision is only a procedural one that determines whether or not the law should go into effect while the Constitutionality of the law is still being determined.  In other words, it is yet to be settled whether or not the law will survive Constitutional scrutiny.  It’s easy to be alarmist with the make up of today’s Court, but it’s going to take some serious legal acrobatics for the Court to reconcile the Constitutional right to an abortion according to Roe v. Wade with the private cause of action against individuals who perform, aid, or abet an abortion.  You can’t have a right to an abortion if no one will perform it for you.  That said, this Court has already demonstrated it does not care about precedent and is more than happy to stretch and bend its holdings around it.  I still like to think that the Court would do that in regard to abortion than altogether reverse Roe v. Wade as having been incorrectly decided — the real concern and why this decision is freaking out a lot of people.  We miss you RBG.  May her name be a blessing.