Texas’s extreme abortion ban prohibits abortion at approximately six weeks of pregnancy, before many know they’re pregnant. The law, S.B. 8, also incentivizes individuals—including anti-abortion activists—to seek monetary penalties by suing anyone who provides an abortion or assists someone in obtaining one after the law’s limit.
It’s a dangerous law. Not only because it denies Texans their constitutional right to abortion, but also because it was designed to avoid federal judicial review by shifting enforcement to the general public.
In its opening brief filed today at the U.S. Supreme Court by the Center for Reproductive Rights and its partners in its case challenging the Texas law, the Center argues that states cannot be permitted to insulate unconstitutional laws by outsourcing enforcement of those laws, as Texas has done with S.B. 8.
The Center will be presenting oral arguments in the case, Whole Woman’s Health v. Jackson, this Monday, November 1, at the Supreme Court, which just last week agreed to hear the case and another case filed by the U.S. Department of Justice that challenges the law.
In the Center’s case, the Court will decide whether federal courts have the power to review Texas’s abortion ban, which prohibits the exercise of a constitutional right, by delegating to the general public the authority to enforce that prohibition through civil actions.
“States cannot nullify rights guaranteed in the U.S. Constitution,” said Nancy Northup, president and CEO of the Center for Reproductive Rights in a statement.“Today the issue is abortion rights, tomorrow it could be free speech, the right to marry, the right to vote, or any other constitutional right. Every person in the U.S. has a stake in how the Court decides this case. Our brief filed today makes clear that doctors, clinic staff, clergy and advocates can sue in federal court to block the vigilante scheme that Texas has created.”
Highlights of the Center’s brief include:
- Texas’s law banning abortions at approximately six weeks of pregnancy is in clear violation of nearly 50 years of Supreme Court precedent, dating back to Roe v. Wade in 1973, barring any prohibition of abortion before viability. Had Texas authorized state officials to enforce this law in the ordinary manner, the law would have been enjoined before it took effect on September 1.
- Federal court review is necessary to address the “ongoing, irreparable, and mass infringement of constitutional rights.”
- Although Texas designed the law to evade federal review, by barring state executive officials from directly enforcing the law, many state parties are in fact connected to enforcing the law, including courthouse clerks, state judges, the state attorney general, and other officials.
- A foundational principle of our federal constitutional system is that “the federal judiciary is supreme in the exposition of the law of the Constitution,” and States may not nullify federal rights through “evasive schemes” designed to foreclose federal judicial review. Texas has done precisely that since S.B. 8 went into effect nearly two months ago.
- “If Texas gets away with this ploy, the constitutional right to abortion will be the first but certainly not the last target of States unwilling to accept federal law with which they disagree.”
- If the Court allows the Texas law to stand, “nothing would stop legislatures unhappy with this Court’s rulings on free speech, religious freedom, the right to bear arms, or property rights from following suit.”
On October 6th, a ruling by a federal district court temporarily blocked the Texas law in a case filed by the U.S. Department of Justice (DOJ), United States v. Texas. In his opinion, the judge stated that Texas had pursued “an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right. From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”
After the federal district court ruling, an appellate court let the law take effect again less than 48 hours later. DOJ’s case challenges the Texas law because it attempts to nullify the federal Constitution.
The Supreme Court will hear oral arguments in the DOJ’s case immediately following the Center’s arguments on November 1. The Supreme Court will decide both whether to reinstate the order blocking the law and whether the United States government has the authority to bring this case against the State of Texas to prevent its state court judges, state court clerks, other state officials, and private parties from enforcing S.B. 8.
Oral arguments for both cases will be streamed on the Supreme Court’s website.
Federal Courts Must Step in to Protect Constitutional Rights
Finally, the Center’s brief argues, “States cannot be permitted to insulate blatantly unconstitutional action by outsourcing enforcement to private citizens and rigging the rules in state court to frustrate any meaningful protection of rights.”
“If ever there were a need for the federal courts to step in, this is it.”
Read more about the case: Whole Woman’s Health v. Jackson