In An Ominous Sign for Roe, The Supreme Court Keeps Texas SB8 Intact

Aron Solomon

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For Elizabeth Prelogar, her first full day at work in November, after being sworn in as Solicitor General of the United States, was a busy one. She began her first morning arguing the second of the morning’s two challenges to the Texas “heartbeat” abortion law - SB8 - before the Supreme Court of the United States.

Prelogar’s oral argument was superb. Fundamentally, there were three major hurdles she needed to clear, each set down in the hearing by one of three Justices. She did this perfectly in the summation of her argument, going as far as to say that if Federal courts really have no authority under the constitution to redress harm done by laws such as Texas SB8, “no constitutional decision from this Court is safe…and the supremacy of federal law cannot be that easily subject to manipulation.” Prelogar vehemently argued against Texas’s position that no one can sue - not the women whose rights are most directly affected, not the providers who have been chilled in being able to provide those women with care, and not the United States in this suit.

While Prelogar’s arguments may have convinced many other incarnations of the Supreme Court over the years, history will treat her first day at work as a failure, as the Court didn’t agree with her argument and grant the statewide injunctive relief against SB8 that Whole Woman's Health wanted.

This morning, the Court agreed, by an 8-1 vote, to essentially defer to the lower courts on SB8. The end result is that while abortion clinics in Texas can now sue a limited number of government officials, SB8 is the law of the land in the State of Texas. In the same opinion, the Court, in a 5-4 vote, decided not to allow lawsuits against Texas judges or the state’s Attorney General because they have “no enforcement authority” under SB8. This is because the architecture of SB8 by the Texas legislature left enforcement up to private citizens - they can sue anyone who “aids or abets an illegal abortion.”

Whole Woman’s Health quickly took to Twitter this morning to comment on the decision, with their most powerful tweet of the storm perfectly framing the obstacles the Court has left standing for woman in Texas:

“For 101 days, our patients have been left with two choices: carry a pregnancy they didn’t want to begin with or jump through hoops to leave the state. It’s heartbreaking and it should have never happened to begin with. Abortion is essential and Texans have been without it.”

As Justice Kavanaugh reminded us in oral argument and today’s opinion of the court reinforces, "the ultimate merits question" of whether the SB8 is actually constitutional "is not before the Court." Today’s ruling simply allows SB8 to remain in place while the lawsuit filed by the women’s clinics goes forward in the lower courts.

Ultimately, the Court saw SB8 for what it always has been - a sideways attempt at forcing the Supreme Court’s hand to overturn Roe v. Wade and Casey v. Planned Parenthood. But the Court never liked SB8 and saw it as the landmine it is, which is why - surely to the dissatisfaction of a large percentage of Americans - they decided to hear the Mississippi heartbeat case, Dobbs v. Jackson Women’s Health Organization.

Adriana González, a South Florida attorney, reminds us that today’s decision is the battle, not the war:

“While sending the Texas SB8 issue back to circuit courts to fight it out is very disappointing for the women of Texas, the fate of Roe and Casey has already been heard in the oral argument in Dobbs, the Mississippi heartbeat case. The eyes of the nation and the world will be watching the Supreme Court to see whether the Justices honor the precedent of these landmark cases or set the nation back an entire generation.”

Theoretically, It is not inconceivable that Whole Woman's Health v. Jackson could wind its way back up to the Supreme Court for a decision on the constitutional merits of SB8. But looking at this through a very practical lens, the end result of the Mississippi case heard on December 1st, Dobbs v. Jackson Women’s Health, means that the Supreme Court has had more than enough of Texas SB8 for now. As Dobbs has the power to redefine abortion law in the United States, Texas SB8 is ultimately - for everyone aside from the women in Texas whose lives are affected by it - a distraction soon to be resolved next year when the Court decides Dobbs.

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Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital, who has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.

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