This article originally appeared in the January 7, 2022 Concord Monitor.
The Supreme Court has issued two opinions in Whole Woman’s Health v. Jackson, the first on September 1 and the second on December 10, 2021. The case deals with the Texas abortion law known as S.B. 8, which prohibits abortion in Texas after six weeks of pregnancy.
By enacting this law, the lawmakers effectively thumbed their noses at Roe v. Wade, which sets the abortion barrier at “viability,” meaning a gestational age of about 24 weeks. Some clever person came up with a private civil-enforcement scheme that takes government out of the process. Instead, the law authorizes anyone from anywhere to bring a civil lawsuit against a physician who violates the six-week limit, as well as anyone who “aids or abets” the doctor.
Such a private “enforcer” doesn’t need to show any personal interest in the matter, any connection to Texas, or for that matter any opinion one way or the other regarding a woman’s right to choose. Success in court rewards the person with a $10,000 bounty for each violation plus lawyers’ fees.
The question on the Court’s “Shadow Docket” last September was whether to leave the law in effect while various challenges wend their way through the courts. You don’t have to be a lawyer, or pro-choice, to know that when a law is unconstitutional, as this one is so long as Roe v. Wade remains the law of the land, then a state can’t opt out from Article VI, paragraph 2, of the U.S. Constitution.
That Article says that the Constitution “shall be the supreme Law of the Land.” It goes on to say that “the Judges in every State shall be bound thereby,” no matter what law the state may enact.
The September 1 ruling, consisting of one very long paragraph, says that the healthcare clinic had not met its preliminary-injunction burden to show that it is likely to succeed on the merits, or that putting a hold on the statute would be consistent with the public interest. In other words, the “Supremacy Clause” is not so supreme.
How would any of us feel if we were haled into court by a bounty hunter in a state that had passed a law prohibiting the use of birth-control devices, even though the Supreme Court decided in 1965, in Griswold v. Connecticut, that we have a constitutional right to do so?
The December 10 opinion does not deal with the six-weeks law—the Court is already considering whether to uphold the Mississippi 15-week rule and thereby overturn the Roe v. Wade viability standard. Instead, the issue this time was whether Texas has outwitted the Constitution by creating a virtually unchallengeable enforcement system.
The clinic prevailed, but just barely. While holding that the sovereign immunity doctrine and the federal “case or controversy” requirement rule out suing judges, court clerks, and the state attorney general as parties, the Court decided that state licensing officials were properly named, so the case can proceed against them. At the same time, the Court held to its earlier ruling, once again leaving the Texas law fully operational.
In his separate opinion, Chief Justice Roberts, no fan of Roe v. Wade, acknowledged that the effect of S.B. 8 is to deny a right protected under the Federal Constitution. As he pointed out, what’s at stake in the case is not the particular federal right but rather the role of the Supreme Court in our constitutional system.
Justice Sotomayor, writing for herself and Justices Breyer and Kagan, dissented from both decisions. As usual, she minced no words, finding the September refusal to enjoin S.B. 8 “stunning” and accusing the Justices in the majority of burying their heads in the sand. “It cannot be the law,” she wrote, that a state can evade constitutional scrutiny “by outsourcing the enforcement of unconstitutional laws to its citizenry.”
In her December dissent, Sotomayor would keep state court officials and the state attorney general in the case. But her wrath with the Texas legislature and her fellow Justices remains unabated. She compares S.B. 8 to the philosophy of slavery supporter John C. Calhoun, who insisted that the states have the right to “nullify” federal law with which they disagree. And she hasn’t gotten over the previous ruling which refused to put a stop to “the havoc S.B. 8’s unconstitutional scheme has wrought for Texas women.”
How disappointing it is that our highest court has allowed the State of Texas to nullify the Supremacy Clause, even for a minute much less months. Allowing abortion providers to pursue their challenge, even though only against state licensing officials, represents a partial victory for the clinic and common sense, and it may be that the Texas enforcement scheme will be held unconstitutional. In the meanwhile, pregnant women whose constitutional rights have been taken away will never get them back.
Ironically, the State of California may enact copycat legislation permitting private bounty hunters to sue people who are exercising gun ownership rights protected by the Court’s Second Amendment ruling. Such a law would suffer the same enforcement infirmities as S.B. 8.
Yale has taken Calhoun’s name off the undergraduate residential hall long known as Calhoun College, but he must be smiling from the grave.