The Court did its best to avoid letting the politics of abortion further warp the relationships between federal courts and state government.
The Court did its best to avoid letting the politics of abortion further warp the relationships between federal courts and state government.
H ard cases make bad law, and bad decisions make more hard cases. Roe v. Wade was a bad decision that has distorted many areas of our law. The Supreme Court created this monster with Roe, but in the Texas abortion cases decided this morning, it found itself caught between two sides trying to evade or rewrite the rules. On the one side was the Texas legislature: The new Texas abortion law, S.B. 8, is a too-clever-by-half attempt to get around Roe’s distortions by creating its own somewhat-novel enforcement mechanism. On the other side were the abortion clinics and the Justice Department’s lawsuit, both of which treated legal abortion as a constitutional interest so powerful that protecting it required the Court to bulldoze longstanding doctrines limiting the powers of federal courts.
The Court did its best to avoid letting the politics of abortion further warp the relationships between federal courts and state government. In Whole Woman’s Health v. Jackson, the challenge brought by Texas abortion clinics to S.B. 8, it refused to allow unprecedented federal lawsuits against state-court judges and clerks. It dismissed the suit against the Texas attorney general, who has no power to enforce the statute. It gave the back of its hand to Merrick Garland’s entirely novel suit by the Justice Department, tossing it from the Court’s docket and leaving in place a stay entered by the Fifth Circuit that stopped the DOJ suit in its tracks. These are prudent decisions that uphold traditional rules. Only Justice Sonia Sotomayor wanted anything to do with Garland’s outlandish lawsuit.
But the Court’s decision, in a somewhat-fractured opinion written by Justice Neil Gorsuch and a one-line order disposing of the DOJ suit, looks like a Pyrrhic victory for both sides. Eight justices (all but Clarence Thomas) allowed federal lawsuits to proceed against Texas medical-licensing officials. That should not result in a federal court order barring the civil-damages lawsuits allowed by S.B. 8 — but it could result in a federal court opinion finding that the law itself is unconstitutional under Roe (assuming Roe survives). Such an opinion would make it much easier to get civil-damages lawsuits dismissed in state court, thus robbing S.B. 8 of its force.
Finally, if you are looking to read tea leaves on the Dobbs case, the five conservatives did not tip their hand, and the three liberals’ votes were never in doubt anyway, but Chief Justice John Roberts’s opinion in the Texas case sounds like the work of a man who is not ready to entirely throw out Roe and all its works.
Begin with a brief review of how we got here. There are four traditional legal doctrines at issue, and they shaped what Texas tried to do, and how the abortion clinics and Garland tried to stop it.
First is pre-enforcement review. Federal courts are not pundits, giving out their opinions unsolicited on whether laws are constitutional or enforceable. Typically, it is only if you get indicted, sued, or written up by the bureaucracy that you get to argue that the law being used to punish you is unconstitutional. Otherwise, there’s no “case or controversy” for a court to resolve, and courts will refuse to issue “advisory opinions,” which are a big no-no.
Over the years, courts have become more willing to rule on challenges to laws that have not been enforced yet. They have struggled to precisely explain which laws can be challenged in advance, but generally, the person bringing suit has to show that there is some reasonably imminent threat of enforcement — specifically, that the defendant is likely to enforce the law against the plaintiff who brought the case. As you may recall, the lack of any enforcement threat was the reason why the Court, six months ago, threw out the Texas challenge to Obamacare’s individual mandate, even though the existence of the mandate still imposes extensive compliance costs on the state; because Congress removed the penalty for violating the mandate, the Court concluded, there was no freestanding right to get a court opinion on whether the mandate was constitutional.
Federal district judges have been much more aggressive about immediately granting pre-enforcement injunctions against abortion laws than in any other area of law. The rhetorical fireworks in the Texas abortion case were mostly driven by the insistence by Roe’s defenders — including the liberal justices and the attorney general — that the law must always keep open some avenue for pre-enforcement challenge in abortion cases. Even Roberts, who has on other occasions stressed the need for judicial modesty, insisted that the Court’s doctrines must find some way to allow this law to be challenged in advance:
The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
But as Gorsuch noted, nobody disputes that a defense to a civil suit under S.B. 8 can raise the question of whether S.B. 8 is unconstitutional; in fact, he cited one Texas state-court decision doing so just yesterday. This is why the clever strategy of the law to avoid pre-enforcement review by barring its enforcement by state executive officials was always self-defeating: The only way for S.B. 8 to work in threatening clinics with civil liability without a court ruling on the matter is, paradoxically, for nobody to ever enforce the law by filing suit. Because anybody and everybody is permitted to file suit and given a financial incentive to do so, it would be very hard to sustain indefinitely an embargo on anybody filing suit. And eventually, if nobody did, the clinics would eventually just go back to flouting the law.
This is why much of the hysteria about S.B. 8 evading pre-enforcement review has been overblown. There are reasonable criticisms of the use of private civil suits, even by people with no personal stake in the suit, to enforce our laws. In fact, conservatives have long been critical of private attorney-general statutes of this nature. It was conservative business groups that led the Proposition 64 fight in 2004 to limit California’s authorization of anybody to sue over any “unfair or unlawful” business practice. Gorsuch noted that history:
[S]omewhat analogous complaints could be levied against private attorneys general acts, statutes allowing for private rights of action, tort law, federal antitrust law, and even the Civil Rights Act of 1964. In some sense all of these laws “delegate” the enforcement of public policy to private parties and reward those who bring suits with “bount[ies]” like exemplary or statutory damages and attorney’s fees.
But all of these areas of law result in lawsuits regularly being filed in court; they do not loom in the air. By contrast, laws that stay on the books forever unenforced — think of the Logan Act — end up getting ignored. If Democratic state legislatures tried to imitate S.B. 8 in other contexts — say, gun rights — it is certain that their work would result in lawsuits, and those lawsuits would provide post-enforcement review even if there was no pre-enforcement injunction. Such laws would be fair game for criticism of the use of private lawsuits, but the unavailability of pre-enforcement review would not be the main reason.
Sotomayor’s over-the-top accusations about the Court discarding the sacrosanct nature of pre-enforcement review led to some scathing responses from Gorsuch:
[Sotomayor’s] rhetoric bears no relation to reality. The truth is, many paths exist to vindicate the supremacy of federal law in this area. . . . [E]veryone acknowledges that other pre-enforcement challenges may be possible in state court . . . [Sotomayor’s] suggestion that the Court’s ruling somehow “clears the way” for the “nullification” of federal law along the lines of what happened in the Jim Crow South not only wildly mischaracterizes the impact of today’s decision, it cheapens the gravity of past wrongs.
[T]hose seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments. This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. . . .
As our cases explain, the “chilling effect” associated with a potentially unconstitutional law being “‘on the books’” is insufficient to “justify federal intervention” in a pre-enforcement suit. . . . Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. . . . The petitioners are not entitled to a special exemption.
The second legal doctrine at issue in this case was sovereign immunity. Under the Eleventh Amendment and the traditional doctrine of state sovereign immunity, state officials typically cannot be sued in federal court even when they violate the Constitution (whether they can be sued in state court depends on state law). You can’t sue the state legislature for passing a bad law, for example. Since the 1908 decision in Ex parte Young, the Supreme Court has recognized a narrow exception to that rule: State executive officers can be sued in federal court to prevent them from exercising powers that violate the federal Constitution or federal statutes. The theory behind that exception is grounded in English tradition, which allowed such suits in courts of equity at the time the Constitution was written.
But the Whole Woman’s Health lawsuit presented two sets of problems with applying Ex parte Young. On the one hand, S.B. 8 was written to deprive state executive officials of any enforcement powers, precisely so that they could not be sued under Ex parte Young. The five conservative justices concluded that the Texas attorney general, Ken Paxton, had no power to do anything unconstitutional, and threw out the case against him.
On the other hand, the clinics tried to sue state-court judges and court clerks to prevent them from hearing civil-damages lawsuits. Ex parte Young explicitly noted that “an injunction against a state court would be a violation of the whole scheme of our Government.” This has long been black-letter law drilled into everyone who takes a federal-courts class. The limitation on enjoining state courts is deeply embedded in our system and finds no grounding in the traditional equity practice that Ex parte Young cited as the basis of the legitimacy of its rule. To allow it, the Court would not only have to throw out over a century of precedent (an ironic request, given how much the defenders of Roe emphasize the sanctity of precedent), it would have to rethink its entire approach to lawsuits against courts. More from Gorsuch:
Clerks serve to file cases as they arrive, not to participate as adversaries in those disputes. Judges exist to resolve controversies about a law’s meaning or its conformance to the Federal and State Constitutions, not to wage battle as contestants in the parties’ litigation. As this Court has explained, “no case or controversy” exists “between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute.” . . .
Under the petitioners’ theory, would clerks have to assemble a blacklist of banned claims subject to immediate dismissal? What kind of inquiry would a state court have to apply to satisfy due process before dismissing those suits? How notorious would the alleged constitutional defects of a claim have to be before a state-court clerk would risk legal jeopardy merely for filing it? Would States have to hire independent legal counsel for their clerks—and would those advisers be the next target of suits seeking injunctive relief? When a party hales a state-court clerk into federal court for filing a complaint containing a purportedly unconstitutional claim, how would the clerk defend himself consistent with his ethical obligation of neutrality? . . . Could federal courts enjoin those who perform other ministerial tasks potentially related to litigation, like the postal carrier who delivers complaints to the courthouse? Many more questions than answers would present themselves if the Court journeyed this way.
The Court did, however — over the objections of Justice Thomas — find that there was one, narrow way to let the clinic lawsuit go forward: against Texas medical licensing authorities. The Court read the statute together with some other Texas laws to potentially empower those officials to take action against abortion providers who violate S.B. 8’s substantive limits on abortion. But that is a very narrow window, because of the third issue in the case.
The third doctrine at issue is standing. Standing to sue does not only mean that the person filing suit has some concrete stake in the case; they also have to connect that stake to (1) the person being sued and (2) the relief they want from the court. In the case of the lawsuits against the medical licensers, one thing the clinics cannot get is an injunction against civil lawsuits, because the law does not empower the licensing authorities (in their official capacities) to file such lawsuits. It does exactly the opposite.
A decision in a case against the licensing officials could form a precedent that is used in cases against civil-damages suits. But that requires such suits to be brought, or at least requires pre-enforcement suits in state court. As a result, today’s decision does not necessarily foreclose the S.B. 8 tactic from being used again in a context where state law even more clearly bars state officials from enforcement.
The mismatch between the parties and the remedy was also an issue in the Justice Department’s lawsuit: For example, DOJ argued that the Texas law violated the federal government’s right to fund and perform abortions free of state regulation. But even if that argument had succeeded, it would simply immunize the federal government from S.B. 8; it would not offer a basis for striking down the whole statute.
The Court also unanimously threw out the case against one private individual, finding that there was no evidence he was going to file a civil suit. That ended the last effort to enjoin civil lawsuits.
That brings us to the fourth and final doctrine involved in these cases: third-party standing. What the Justice Department tried to do was completely unprecedented, asserting a right of the federal government to sue any state that passed any law that violated the Constitution. Several of the justices were clearly alarmed, at argument, at the unlimited and unprecedented power being claimed by Garland and his department. The Court this morning dismissed review of that lawsuit as improvidently granted; because the order of dismissal reflected only Sotomayor dissenting, there were clearly eight votes to get the stench of the Garland lawsuit off the Court’s docket.
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Both pre-enforcement review and traditional conservative skepticism of private attorney-general lawsuits have been grounded in the idea that the process can be the punishment: Even well-considered laws should not lead to drawn-out and expensive forms of enforcement that can be coercive long before any court adjudicates whether the defendant broke the law. It would be nice to think that the S.B. 8 experience has taught liberals and progressives what it is like to be on the opposite side of that maxim. I do not expect them to learn anything. Sotomayor, in an opinion joined by Justices Stephen Breyer and Elena Kagan, insisted that she is not arguing that there must be pre-enforcement review available “whenever a state law chills the exercise of a constitutional right” — this one is special, and a different set of facts would be dismissed by them as no big deal.
On the other hand, conservatives should be skeptical of using this enforcement model again. I confess that, on an emotional level, I do not care much that legal hardball is being played against abortion providers, who are ghoulish purveyors of death for profit. But the rule of law means that a rule for one is a rule for all. We should not create enforcement mechanisms we would not want used by our opponents or enemies. The better answer is to do what Mississippi has done, and ask the Supreme Court to put a final end to the atrocity of Roe v. Wade.