The Supreme Court hath given a sliver and taken away the pie. Its ruling last week in Whole Woman’s Health v. Jackson is a wipeout for reproductive freedom, deliberately disguised as a partial victory. The Court looks decreasingly like a true judicial body and increasingly like a wolf cagily donning sheep’s clothing to prey upon constitutional rights.
At issue was Texas’ “bounty hunter” anti-abortion law, the most restrictive in the nation. It makes abortions illegal in the state after a fetal heartbeat is detected, usually around six weeks and long before viability. Texas used the sly trick of leaving enforcement to private vigilantes, rewarding them with limitless bounties starting at $10,000 for successfully suing anyone helping a woman who chooses to end her pregnancy more than six weeks after her last period. The acknowledged purpose of that ruse was to evade federal court review on the false premise that only private individuals were enforcing SB 8, not the state.
In his December 10 majority opinion, Justice Neil Gorsuch devised his own ploy to make it look as if the justices were behaving like judges rather than, as Justice Amy Coney Barrett recently put it with unacknowledged irony, “partisan hacks” in robes. The Court gave Texas abortion providers the Pyrrhic victory of leaving the federal courts open to suing their state licensors who under the Texas scheme were to be tasked with delicensing abortion providers who lost an SB 8 lawsuit. But the Court barred the providers from suing state court officials, and they are the only ones who could deliver the real relief that the providers needed—the relief of rejecting lawsuits by the “bounty hunters” to whom Texas has delegated enforcement of its blatantly unconstitutional anti-abortion scheme.
Some victory. Abortion providers can go to federal court to retain licenses that they cannot use—the financial exposure to potentially crippling liability in successive suits by vigilantes is too great. It is no solace for a woman choosing to end her pregnancy that a safe abortion clinic in town kept its license even as it shut its doors.
To borrow Justice Robert H. Jackson’s words from Edwards v. California, the Court majority has offered the country a “teasing illusion like a munificent bequest in a pauper’s will.”
What looms ahead may be worse. As Justice Sonia Sotomayor predicted, “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights.” Texas itself could easily amend its law, for example, by eliminating the licensing authority’s role or by suspending abortion providers’ right to sue the licensing authority if a bounty hunter’s suit is pending against the provider.
The Whole Woman’s Health majority kept SB 8 in effect, despite its flagrant violation of the Court’s abortion precedents. As Chief Justice John Roberts, joined by Justices Sotomayor, Stephen Breyer and Elena Kagan, wrote in concurring and dissenting, SB 8’s ban on abortions “is contrary to this Court’s decisions in Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.”
The majority decision eviscerates other precedent as well. As Justice Sotomayor points out, the Court’s decision in Ex Parte Young established the right to challenge a statute “which imposes such severe penalties for disobedience of its provisions as to intimidate the parties affected thereby from resorting to the courts to test its validity.” That is the precise chilling effect of SB’s financial penalties awarded to bounty hunters.
Just last week we saw that chill in operation even after a favorable decision. On December 8, a Texas judge ruled in a state court action that SB 8 was an “unlawful delegation of enforcement power to a private person.” Abortion providers responded that they would not reopen until they were protected by a clear ruling from the Supreme Court.
Some may have found hope in Chief Justice Roberts’ observation that the federal district court “should resolve the litigation and enter appropriate relief without delay.” But if the district court were to grant relief against anyone but a state licensing authority, its action would surely be blocked by the uber-conservative Fifth Circuit Court of Appeals. That appellate court has twice before rejected the district court’s previous rulings that sought to uphold the right to choose.
It would take many months for the ongoing SB 8 cases to wend their way back up to the Supreme Court, which by then may well have gutted Roe in Dobbs v. Jackson’s Women’s Health Organization, a case that the Court’s five most reactionary Justices signaled they would use as a vehicle to leave to states the decision whether to ban abortion entirely.
The Texas Republican legislature’s scheme has thus played out the clock to perfection. For low-income women in Texas who cannot afford to travel to other states, every day of reproductive justice delayed has been constitutional justice denied. Ultimately, Texas has extracted every drop of delay pending the Supreme Court’s anticipated dismantling of Roe in Dobbs.
At the Dec. 1 Supreme Court oral argument in Dobbs, Justice Sotomayor warned of the “stench” of illegitimacy over the Court should it overrule Roe and ratify what Mississippi’s Republican legislators said in proposing their 15-week abortion bill: “We’re doing it because we have new Justices.” Rewarding that statement, Sotomayor said, would reinforce a growing perception that the “the Constitution and its reading are just political acts.”
The latest polls show that 61 percent of Americans believe that the court “decides issues politically.” The court’s majority today appears to have calculated that the headline “procedural victory for abortion providers” would satisfy the public that the justices are doing law rather than politics. Even if it later decrees Roe’s demise.
But the judicial hand will not prove quicker than the people’s eye. Women affected by this decision will see it for exactly what it is—a decision that leaves their constitutional rights twisting in the wind until the Court cuts the rope.
Last week’s SB 8 opinion will fray even further the interconnected threads of trust and public order. Every citizen’s safety depends on faith in the legitimacy and integrity of our judicial institutions. That trust must be earned. The Supreme Court’s duplicitous decimation of reproductive rights squanders it instead.