SB 8 ruling: A truly terrible and dangerous decision

The U.S. Supreme Court, in its decision in Whole Woman's Health v. Jackson, 2021 DJDAR 12557, on Friday, has created a roadmap for how state governments can undermine constitutional rights. It's a decision that can be understood only based on the hostility of the five most conservative justices to abortion rights. But the rules it establishes will have implications far beyond the important area of reproductive freedom.

The case involved the Texas statute, SB 8, which prohibits abortions after a fetal heartbeat can be detected, about six weeks after a woman's last menstrual period. This is a time at which many women don't even know they are pregnant. The law is blatantly unconstitutional because the Supreme Court has held since Roe v. Wade in 1973 that states cannot prohibit abortions prior to viability, which is about the 24th week of pregnancy.

The Texas statute is not enforced by the state attorney general or other government officials. Instead, Texas provided that doctors who perform abortions or those who aid or abet abortions can be civilly sued and are liable for $10,000. The Texas law had its desired effect: Doctors and reproductive health care facilities in Texas stopped performing abortions after the sixth week of pregnancy when the law went into effect on September 1.

No one disputes that the Texas law is unconstitutional. Nor does anyone deny that those sued can argue as a defense that the law is unconstitutional. The issue is can there be a suit against state officials to enjoin the law if none play a role in enforcing it.

The answer clearly should be yes, there must be a way of challenging and enjoining an unconstitutional law. Although the 11th Amendment means that a state government cannot be sued in federal court, since Ex parte Young in 1908 the law has been that state officials can be sued to enjoin unconstitutional state laws. Moreover, it should not be that a person has to violate a law in order to challenge it. As the Texas experience shows, most will not violate even a clearly unconstitutional law and risk liability.

I was confident after the oral argument in Whole Woman's Health that a majority of the justices would hold that state officials, such as the Texas attorney general and court clerks, can be sued to enjoin the Texas law. Conservative Justice Amy Coney Barrett was skeptical of Texas' position that there was no need for federal court review because defendants could challenge the state law when they were sued. She expressed that such suits take a long time and no court would be able to enjoin the state statute.

A particularly important exchange at the oral argument occurred between conservative Justice Brett Kavanaugh and Texas Solicitor General Judd E Stone II. Kavanaugh asked whether a state might use the Texas law as a precedent and adopt laws creating civil liability for those possessing guns or performing same sex weddings or exercising other constitutional rights, and whether states could set fines in the millions of dollars. Stone admitted under Texas' theory a state could do this, putting all constitutional rights in jeopardy.

But that is not how Barrett or Kavanaugh voted when the case was decided on Friday. The court ruled, 5-4, that state officials cannot be sued for injunctive relief if they play no role in enforcing the law. The court held, 8-1, that Texas officials who are responsible for licensing health care facilities in the state can be sued because they do play a role under the state's law. But the court, 5-4, concluded that the Texas attorney general, court clerks, and judges cannot be sued for injunctive relief. Justice Neil Gorsuch wrote the opinion for the court. Justice Clarence Thomas was alone in saying that no one could be sued. And Chief Justice John Roberts and Justice Sonia Sotomayor wrote vehement dissents, joined by Justices Stephen Breyer and Elena Kagan.

Justice Gorsuch and the majority gave clear guidance to Texas and other states on how to immunize unconstitutional laws from federal judicial review: Just make sure that no state officials play a role in enforcement. In fact, within minutes of the Supreme Court's ruling, supporters of the Texas law announced that they would modify it so that no Texas officials played any role in its implementation or enforcement. Then, under the Supreme Court's ruling, no suit for injunctive relief could be brought in federal court.

A state can create civil liability for any constitutionally protected behavior and so long as no state official plays any role in enforcing it, the law will remain on the books until someone violates it, is sued, and challenged it. For instance, a state can create civil liability for anyone who performs a same-sex wedding or owns a gun or criticizes the governor. The state conceivably can set civil liability at a million dollars, so that no one would risk being sued. In fact, on Saturday, the day after the Supreme Court's ruling, California Gov. Gavin Newsom proposed a state law that would allow civil suits against those who own assault rifles or ghost guns with a $10,000 recovery for successful plaintiffs.

Justice Sotomayor expressed this danger powerfully in her dissent when she declared: "While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic."

Also, disturbing is that the Supreme Court on Friday dismissed the suit by the United States against Texas to enjoin the law. If suits against the state are limited in the way the court's majority indicated, then it is essential that the United States government be able to sue to protect the rights of its residents.

It also is stunning that the Supreme Court allowed the flagrantly unconstitutional Texas law to remain in effect and did not grant the preliminary injunction urged by the dissenting justices. Just the week before, the court heard oral arguments in Dobbs v. Jackson's Women's Health Organization, about a Mississippi law that prohibits abortions after the 15th week of pregnancy. It is that case which will determine the future of abortion rights in the United States and every indication from the oral argument was that there are six justices ready to overrule Roe.

There is no way to avoid the conclusion that the Supreme Court's holding in Whole Woman's Health reflects the hostility of the conservative justices to abortion rights. I cannot believe that the court would have come to the same conclusion if the law involved civil liability for gun ownership.

What should the Supreme Court have done in the Texas case? It should have held clearly and unequivocally that state officials, such as the attorney general, judges and court clerks can be sued to enjoin an unconstitutional law that authorizes civil damages for exercising a constitutional right. It should have held that the United States government may sue a state that violates constitutional rights. It should have enjoined the flagrantly unconstitutional Texas law.

Chief Justice Roberts, no liberal, in a dissenting part of his opinion quoted precedent and declared: "If 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." I worry the court took a step of making the Constitution a mockery by lessening the ability of the courts to enforce it.