On Monday, a Supreme Court stacked with a solid majority of anti-abortion justices will hear oral argument in two consolidated cases related to Texas’s ban on abortions conducted after six weeks—a point at which many people don’t even know they’re pregnant. Although a core constitutional right is on the chopping block in Whole Woman’s Health v. Jackson and, appropriately enough, United States v. Texas, you wouldn’t necessarily know it from the language the parties are employing here. Before the justices, the deeply critical issue of whether people can access basic reproductive health care gets buried under arcane, technical-sounding legalese, which is exactly the outcome the conservative legal movement wants.
Most state anti-choice laws run into the same roadblock: Abortion care providers sue in federal court, asking a district court judge to prevent state officials from enforcing the law. Federal courts, bound by Roe v. Wade and Planned Parenthood v. Casey, generally grant these requests. With its latest law, SB8, Republican state lawmakers in Texas cooked up a cynical loophole to shield the law from judicial oversight, deputizing private citizens to enforce the ban by suing abortion providers for the chance to collect a cash prize. It creates an anti-choice catch-22: The pro-choice camp can’t sue to stop SB8 from taking effect if they have no one to name in a complaint.
The Court will consider two basic questions on Monday: Whether the federal government is allowed to step in and sue to block enforcement of the Texas abortion law, and whether providers can get into federal court by suing the officials who are involved in enforcing this unique law—state court judges who would hear these cases, for example, and courthouse clerks who would file them. If they can’t do their jobs, vigilante plaintiffs’ efforts to rob pregnant people of their bodily autonomy would be functionally thwarted.
Texas, as you might guess, says no to both questions. The federal government can’t sue the state, they argue, because Congress hasn’t passed a law granting it that right. Abortion providers, meanwhile, can’t sue state officials because SB8 specifically bars state officials from acting as bounty hunters. The law’s defenders present these conclusions as procedural, complex, and oh-so-civil. No one has passed a law taking abortion away, they explain. They’ve just made getting an abortion a logistical near-impossibility, while simultaneously erecting near-impassable procedural thickets to prevent anyone from stopping this law from taking effect.
Appealing to the hypothetical power of the legislature is an empty gesture that the conservative capture of the federal judiciary allows conservatives to make.
Nowhere is this sense of self-satisfaction more evident than in the brief from conservative lawyer Jonathan Mitchell, the architect of SB8’s dystopian enforcement mechanism. Mitchell, who clerked for Justice Antonin Scalia and previously served as Texas’s Solicitor General, spent years crafting a different anti-choice Texas law that the Supreme Court struck down in 2016. Justice Stephen Breyer’s majority opinion in Whole Woman’s Health v. Hellerstedt called out Texas for its conspicuous drafting chicanery. “We reject Texas’ invitation to pave the way for legislatures to immunize their statutes” from judicial review, he wrote.
But now, Mitchell is making his case before a much friendlier Court, and judging by his brief, he seems to know it. Texas elected to “create a private tort that recognizes a private interest of those who oppose a third party’s abortions,” he explains matter-of-factly, comparing it to the classic tort of infliction of emotional distress. To anyone who is not a high-profile conservative lawyer, this comparison is absurd: In effect, it allows anti-choice extremists to sue strangers for exercising constitutional rights because they don’t believe those rights should exist.
That way lies chaos. As the Center for Reproductive Rights points out in their brief for the Court, if you can sue anyone who helps a pregnant person gets an abortion, what’s to stop a state from authorizing people whose feelings are hurt by same-sex marriage to sue same-sex couples for monetary damages? Given that conservative groups fighting to overturn Roe have made clear they want same-sex marriage gone, too, this isn’t far-fetched. Or, to give an example that would terrify conservatives: What if a state passes a law allowing third parties to sue gun manufacturers and dealers over gun-related deaths? Justice is not supposed to be meted out piecemeal by random citizens based on their antipathy for others’ rights.
Members of the Court’s liberal wing will presumably ask such questions of Mitchell, given that Breyer already rapped his knuckles the last time he went down this road. But it’s unlikely you’ll see any such concern from the Court’s conservatives, who are distressingly likely to buy Mitchell’s argument that only Congress can fix this problem by enacting a law that would allow the federal government to intervene. The Democratic-controlled House of Representatives has passed such a bill, but absent filibuster reform, it stands no chance of passing the 50-50 Senate. Mitchell understands this perfectly well: Appealing to the hypothetical power of the legislature is an empty gesture that the conservative capture of the federal judiciary allows him to make.
Texas and its allies will spend Monday insisting that dry rules of civil procedure rule the day: No one can sue anyone here, and the state is free to do as it pleases. They will treat the result—an end to legal abortion in Texas—almost as an afterthought, because the conservative legal movement understands that they do not have to persuade the Court to overturn Roe in order to make it irrelevant.
