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US Supreme Court rulings in 1973 and 1992 created a constitutional right to abortion and prevented states from banning abortion pre-viability (before a foetus can survive outside the womb). Organisations like the Center have successfully fought previous state abortion restrictions that rely on enforcement by the executive branch in court, ensuring they were blocked before implementation.
But SB8 is the first ban intended to be enforced by civilians, not the state’s executive branch. Condemned by some commentators as a legal ‘hack’, this mechanism enabled SB8 to avoid judicial review before going into effect in early September.
Although SB8 itself hinges on lawsuits by uninjured parties, judges and defenders of the law claim clinics and even the federal government lack standing to litigate over its constitutionality because they have not been sued under it.
We have a situation where a fundamental constitutional right just [does] not exist in a state
Senior Staff Attorney, Center for Reproductive Rights
Matt Kaiser, Vice Chair of the IBA Criminal Law Committee and a partner at Kaiser Dillion in Washington, DC, explains that ‘because the executive branch is not in charge of enforcement, the Supreme Court said they can’t review the law – even though it flatly violates constitutional rights. That’s the hack.’
The US Supreme Court’s majority stressed its decision was not based on conclusions about SB8’s constitutionality, which it said the applicants had raised serious questions of, but on ‘complex and novel antecedent procedural questions on which [applicants had] not carried their burden’.
‘This kind of private right of action, giving an individual person an ability to sue another because of something they did that doesn’t affect you, is kind of novel as a matter of law,’ Kaiser adds. ‘It really is intended to throw a stick in the spokes of the justice system.’
In early October, a federal district court issued a temporary injunction on SB8 after the US Justice Department (DOJ) sued Texas over its ‘open defiance of the Constitution’. But Texas appealed to the Fifth Circuit Court of Appeals, which reinstated SB8 within 48 hours. Under SB8, retroactive lawsuits may be filed for any abortions procured during the injunction.
The DOJ appealed to the Supreme Court, which has agreed to consider the legality of the enforcement mechanism and whether or not the DOJ and clinics can sue to challenge the law. The DOJ’s case has been combined with an appeal from the Center, which asked the Court to intervene in its case scheduled for oral argument in the Fifth Circuit in December.
Crucially, however, the Court will not consider the constitutionality of SB8 and will allow the law to remain in place while the case is ongoing.
A majority of Supreme Court justices have also recently alarmed proponents of abortion rights nationwide by agreeing to review a Mississippi ban on abortion after 15 weeks gestation. The case, commencing in December, will be the first time the Court has reviewed a ban on abortion pre-viability in decades.
In the meantime, to force review of SB8, a doctor opened himself up to several lawsuits by announcing in the Washington Post that he had performed a banned abortion. The Center is representing the doctor – Dr Alan Braid – and filed a federal lawsuit to consolidate all lawsuits against him, arguing that no-one suing him is entitled to the $10,000 bounty because the underlying statute is unconstitutional.
Duane believes ‘any reasonable court will see that and issue a declaratory judgement stating that SB8 is unconstitutional and can’t be enforced.’
In Kaiser’s mind, the future of SB8 depends on how courts respond to the law, ‘where the status of abortion rights is after the Supreme Court reviews the Mississippi ban, and whether Congress is able to get any action done legislatively. And I’m very pessimistic about congressional action on anything, but especially on abortion rights.’
But Duane is hopeful, because in late September the House of Representatives passed the Women’s Health Protection Act, which would block state bans by providing a federal right to abortion. ‘This is the first time that a protective bill for the right to abortion has ever had a vote in our Congress,’ she says. ‘That’s huge, and that the bill passed was a huge statement. Certainly, there are additional hurdles to pass through in terms of the US Senate, but we are making progress.’
But, in the meantime, other state legislatures are copying SB8, and Kaiser suspects that even if parts of SB8 are struck down, states will try to fix those aspects while retaining the general thrust of the law. He’s concerned about the ‘hack’ spreading. ‘If that gets expanded, you can imagine, this becomes a mechanism for political divisiveness to just spill into the courts.’
Duane sees a threat to democracy. She stresses that, beyond abortion, the public should be very worried that state politicians can try to use the legal system to disenfranchise fundamental rights. ‘We have a situation where a fundamental constitutional right just [does] not exist in a state.’
Image: WASHINGTON, DC - OCT. 2, 2021: Women's March in Washington demanding continued access to abortion after the ban on most abortions in Texas, and looming threat to Roe v Wade in upcoming Supreme Court.
Bob Korn/ Shutterstock.com