Editor’s Note: Mary Ziegler is a law professor at Florida State University College of Law and author of “Abortion and the Law in America: Roe v. Wade to the Present.” Follow her @maryrziegler. The opinions expressed here are those of the author. View more opinion on CNN.
On Monday, the contentious Texas abortion law seemed to be in trouble at the US Supreme Court. But even if the court sides against Texas in one major abortion case, Roe v. Wade will still be at risk of being overturned in another.
The state was defending its novel abortion ban, SB8, in two lawsuits, one brought by abortion providers and the other by the Department of Justice. SB8 bans abortion as early as six weeks (or roughly two weeks before anyone could plausibly be expected to know that they were pregnant) but outsources enforcement entirely to private citizens, who can sue anyone who performs or aids in procuring an abortion for at least $10,000.
There was a method to the madness: Texas, which recently had to pay the Center for Reproductive Rights a king’s ransom in legal fees for restrictions on abortion clinics that were found to be unconstitutional, hoped in crafting this law to insulate itself from constitutional challenges.
For a time, the state’s plan seemed to be working. The Supreme Court allowed SB8 to go into effect last month, writing a perfunctory order hours after the law was already in force; the justices voted five to four that Texas may be immune from suit.
There are limits to when people can sue states; one major exception applies when state officials try to enforce potentially unconstitutional laws. But Texas argued that state officials were prevented from enforcing anything under this law, and that the case did not belong in federal court.
In theory, the SB8 litigation that culminated in Monday’s arguments before the court was about intricate procedural questions that had nothing to do with the fate of abortion in America. In practice, it is unimaginable that the justices would have been so nonchalant if Texas had tried to stop the judiciary from vindicating the freedom of speech or religion.
Texas wanted to wage a proxy war against Roe – the 1973 decision that established a pregnant person’s right to an abortion – and the justices seemed to be game.
Not anymore. Monday’s oral arguments did not go well for Texas.
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch seemed sympathetic to Texas’s position in the providers’ suit, but Justices Amy Coney Barrett and Brett Kavanaugh, whose votes often determine which way the court will swing, seemed to have grave doubts about SB8.
Barrett asked Texas Solicitor General Judd Stone whether a similar device could apply to the First Amendment. Kavanaugh posed a similar question about the Second Amendment.
A loss on SB8 would be a major win for abortion rights in the short term.
While the law has been in effect, people in Texas have been forced to travel out of state for abortions, causing serious overcrowding in neighboring states. Pregnant women have to risk their lives to travel out of state to manage ectopic pregnancies; the law’s narrow medical emergency exception scares physicians away from providing necessary care. Blocking SB8, or striking it down, would save Texas women from this nightmare.
But in the long term, siding against Texas more likely means that the court has tired of the proxy war on Roe and is ready for a more direct attack. If the court’s conservative majority wanted to dismantle Roe, there were always multiple ways of doing so. The court could opt for the direct repudiation of Roe –perhaps in a single decision or a series of rulings. Or the justices could do something more subtle, allowing the states to ban more and more abortions, but without declaring a formal end to abortion rights
SB8 offered the ultimate stealth solution: states would ban abortion, and the courts would wash their hands of the matter, claiming that Texas had devised a way to keep the cases out of federal court. But rejecting SB8 does not mean saving Roe. It simply means that the justices may prefer a more transparent path to eliminating abortion rights.
The proxy war launched by Texas might have seemed seductive to the court’s conservative majority at first. By letting SB8 go into effect, the court could effectively eliminate abortion in one of the nation’s most populous states without getting its hands dirty. Pleading that there was little they could do, the justices could duck accountability; indeed, in discussing SB8, the court would not even have to clarify the state of the law on abortion.
In theory, states could pass any number of SB8-style laws on everything from guns to voting to religion. No one seriously believed that the court’s creative lawyering would fail it so abjectly if a right other than abortion were at issue.
On Monday, the court seemed to recognize that SB8-style laws would not just undermine abortion rights but the nature of constitutional adjudication. SB8 was written to thwart judicial review – to take power from the courts.
As Justices Barrett and Kavanaugh recognized, states could use the same trick when limiting rights to which the court’s conservative majority is sympathetic, such as the right to bear arms or the free exercise of religion. And SB8 represented a bid to narrow the power of the courts, a loophole that allowed states to ignore federal constitutional rights recognized by the courts.
But siding with the abortion providers will not mean that SB8 will go away immediately. At most, the court would be ruling that abortion providers can sue. The case will return to the district court. Any order finding SB8 to be unconstitutional will take time in the lower courts; any lower court decision temporarily blocking it will be appealed to the conservative Fifth Circuit, which would likely let the law go into effect again.
That means that nothing the high court does is likely to restore access to abortion in the short term.
And by the time anyone gets an answer on SB8, there may be no right to abortion anymore. That’s because of a case the court will hear December 1: Dobbs v. Jackson Women’s Health Organization, a Mississippi case that asks the court to uphold a ban on abortion before viability, the point at which survival is possible outside the womb. To uphold Mississippi’s law, as many expect, the court will have to overturn all of Roe or eliminate its holding that abortion rights are protected until viability.
If abortion providers win in the SB8 litigation, the odds of devastating loss in Dobbs do not change. The court may bristle at the idea of states nullifying constitutional rights, but that does not mean that justices think that there is a right to abortion. If anything, in taking the Dobbs case, the court seemed to welcome the chance to directly revisit Roe. Sanctioning Texas’s power grab seems unnecessary when the court will reevaluate whether there is any right to abortion.
Monday’s oral argument saw several justices treating the two cases on SB8 as being about the rule of law rather than the right to abortion, and that was bad news for Texas. The more the court focused on abortion when analyzing SB8, the better Texas fared. The more the court focused on what SB8 could mean in other constitutional contexts, the more Texas seemed to struggle.
If Justices Kavanaugh and Barrett vote to get rid of SB8, it will not be to save abortion rights. So if Texas is in trouble with SB8, Roe v. Wade is, too.