In a few months, the Supreme Court will hear a case that gives the conservative justices an opportunity to overrule Roe v. Wade, allowing states to ban abortion at early stages of pregnancy. But Texas can’t wait that long. In May, the state’s Republican lawmakers passed a law known as SB 8 that outlaws abortion after six weeks. But SB 8 is unique: It empowers private citizens, not government officials, to enforce it. The measure allows any random stranger to bring a lawsuit in state court against any individual who “aids or abets” an abortion in Texas after six weeks. Anyone in the country may file such a suit against abortion “abettors” in any state court within Texas. If the plaintiff wins, they collect a minimum of $10,000 plus attorneys’ fees. And if they win a case against an abortion provider, the court must shut down that clinic. If the provider somehow prevails, they collect nothing, not even attorneys’ fees.
Texas Republicans devised this convoluted system in order to prevent federal courts from blocking the law—and so far, they’ve succeeded: On Friday, the 5th U.S. Circuit Court of Appeals abruptly canceled a trial judge’s hearing on SB 8’s constitutionality, effectively allowing the law to take effect in two days, on Sept. 1. This aggressive intervention forced abortion providers to do what seems almost unthinkable: Ask the U.S. Supreme Court—the same court that agreed to hear a direct challenge to Roe v Wade only a few months back—for an injunction in an emergency filing on Monday. Their plea raises the inevitably bleak question: Will the conservative justices who control a 6–3 majority of the Supreme Court let Texas overturn Roe v. Wade before they have a chance to themselves?
SB 8 was designed as an Escher staircase for litigators. Its sponsors’ chief goal was to evade review by federal courts otherwise obligated to enforce Roe. Typically, when a state restricts abortion, providers file a lawsuit in federal court against the state officials responsible for enforcing the new law. Here, however, there are no such officials: The law is enforced by individual anti-abortion activists. There’s no specific defendant to enjoin from enforcing the law. The state ensured that even as it runs afoul of current precedent—under Roe, states may not ban abortion before fetal viability, at about 22 to 24 weeks—this version of the six-week ban survives. Texas argues that “abettors” can challenge the law once it’s enforced against them. But SB 8 locks all litigation in state courts that are now obliged to ignore Roe. So the Supreme Court cannot punt now then step in as soon as someone files suit under SB 8. If the justices want to keep abortion legal in Texas, they must act before Sept. 1.
If SCOTUS does allow SB 8 to take effect, it will be open season on Texas’ abortion providers. Anyone, anywhere, can sue an “abettor” of any abortion that takes place after six weeks in Texas. Patients themselves are exempted from a suit, but their loved ones, including spouses, are not. Possible targets may include any person who encourages the abortion, including family members of the patient; rape crisis counselors, genetic counselors, and clergy; a friend who drives the patient to a clinic; donors to an abortion fund; and, of course, the clinic staff who facilitate the procedure. Any person who forms an intent to “abet” the abortion can also be sued, even if they don’t follow through on their intentions. All these individuals can be sued for at least $10,000 per abortion in any state court. If they don’t defend themselves, the court must automatically rule against them.
One little-mentioned provision of SB 8 also triggers the mandatory closure of abortion clinics in Texas. When a plaintiff wins a suit against an abortion provider, they get more than just monetary damages: The state court is legally obligated to shutter the provider, as well. Thus, if SB 8 takes effect, it will not take long for state courts to end all legal abortion services in Texas.
In July, a coalition of advocates representing abortion providers—led by the Center for Reproductive Rights, the ACLU, and Planned Parenthood—asked a federal district court to block the law from taking effect. SB 8’s convoluted structure prevented them from suing the usual state officials—such as the State Health Services commissioner, who would ordinarily implement a typical abortion restriction. Instead, they sued a group of county clerks and state judges who would enforce SB 8 if it does take effect. A federal district judge was poised to hold a hearing last week that might have paved the way for an injunction blocking the law. On Friday, though, three Republican judges on the 5th Circuit took the extreme and unusual step of canceling that hearing. They also refused to expedite the proceedings, putting the case on a slow track. The 5th Circuit’s interference all but ensured that the law will take effect on Sept. 1.
This eleventh-hour crisis left abortion providers with one last option: ask SCOTUS for help. On Monday afternoon, with the clock ticking, the plaintiffs sought emergency relief from the Supreme Court. They asked the justices to issue either an injunction against SB 8—or, at a minimum, to lift the 5th Circuit’s bizarre order preventing the district court from issuing its own injunction. Their application puts the stakes squarely before the court: Texas, aided by partisans on the 5th Circuit, are trying to reverse Roe before the Supreme Court overturns it. Will the conservative supermajority, which has already agreed to hear a case nullifying Roe, allow Texas to get away with doing it first?
If you’re asking yourself why the Supreme Court would possibly allow the state of Texas to overturn decades of precedent following Roe v. Wade before the court itself decides the issue, the answer seems simple: Whyever wouldn’t they? The current court’s conservative majority always planned to leave the husk of Roe in place, while allowing the states to strangle the fundamentals of the ruling. It was, as we have stressed, probably never going to pen the words “Roe v. Wade is overturned,” triggering a national culture war around the composition of the court and more awkward talk of possible court expansion. If the six conservative justices were seeking to avoid writing an opinion announcing that states can ban abortion once again, this case hands them a sterling opportunity: They can allow states to ban abortion without writing an opinion at all.
Ruling against the Texas plaintiffs’ request for relief, and doing so under the cloak of an emergency order, on the shadow docket, in a case that purports to be about federalism and states’ rights? This is the stuff an anti-abortion jurist’s dreams are made of. If the high court simply decides not to decide the fate of SB 8, in an unsigned, unreasoned two-sentence order over the summer recess, who’s going to pay attention? Texas wants to ban all abortions. The Supreme Court wants Texas to ban all abortions. In the most cynical sense, the decision to do nothing at all here is a win for everyone.
Everyone, that is, except the 85 to 90 percent of abortion patients in Texas who terminate after six weeks into pregnancy. These individuals will now be forced to either cross state lines or self-terminate, opening themselves up to prosecution for buying black market abortion drugs. The abortion providers and “abettors”—who will now be subject to harassment, vigilantism, and the extortionate costs of defending themselves from frivolous suits—they will also prove to be the losers here. But that too, is not a problem for Supreme Court conservatives who perceive late-night freedom-based emergencies only when “religious liberty” or eviction moratoria are involved.
The conventional wisdom around abortion and the Roberts court was always that the chief justice didn’t want to be overruled from below by overeager abortion radicals in the circuit courts; that would be unseemly and would usurp the court’s prerogatives. But the twisted-staircase genius of SB 8 is that it’s Texas itself overruling Roe from below, and making it nearly impossible for any federal court to intervene. Untethered from any duty to rescue the right to choose, the Supreme Court may be more than happy to just stand back and watch it expire. Those of us who’ve been contending for years that the Roberts court would never explicitly overturn Roe were quite possibly not cynical enough. We didn’t account for the fact that they would be delighted to leave it to Texas, and to slouch away without speaking a word. We’ll find out in a matter of days.