SCOTUS will hear SB8 appeals

Both of them, on November 1. The law remains annoyingly in effect until then.

The U.S. Supreme Court has agreed to fast-track two Texas cases involving the state’s near-total ban on abortion, but refused to halt the law from being enforced.

The high court has scheduled oral arguments for Nov. 1.

The court will take up the cases brought forward by abortion providers and the U.S. Department of Justice against the ban, according to a court opinion from Justice Sonia Sotomayor on Friday. It will review the procedural merits of both cases, rather than the constitutionality of abortion, while enforcement of Senate Bill 8 remains in effect.

In her opinion, Sotomayor offered a partial dissent of the Supreme Court’s decision to keep the law in place while the court deliberates over the two cases.

“By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended,” Sotomayor wrote.

The court’s decision to expedite its involvement was a rare move, brought upon by a law that has garnered national attention because of its extensive limits on abortions and its particular mechanisms of enforcement: not by state officials but by private citizens who are empowered to sue those who may help someone receive an abortion after fetal cardiac activity is detected.

“The last time [the Supreme Court] moved this quickly was Bush v. Gore,” said Josh Blackman, a law professor at South Texas College of Law Houston whose expertise includes constitutional law.


Normally, the Supreme Court considers getting involved in a case only after an appeals court has had a chance to make a decision on it. But abortion providers filed a request called a “certiorari before judgment,” a rarely used procedure in which the high court immediately reviews a district court’s ruling without waiting on an appellate court to take action.

One of the abortion providers included in the challenge is Whole Woman’s Health, a provider with four clinics in Texas. Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said Friday’s decision will mean Texans will continue to be denied safe and accessible abortion care.

“The legal limbo is excruciating for both patients and our clinic staff,” Miller said in a statement. “Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come.”

See here. here, here, and here for some background. The 19th adds some details.

The court will not specifically examine the constitutionality of a six-week ban. Rather, the justices will be looking at the legality of Texas’ private enforcement setup, as well as whether the Justice Department has the right to challenge the law. But regardless of the specific questions at play, a decision in favor of Texas could still signal to other anti-abortion lawmakers that a ban like Texas’ is a viable path to pursue.

The law has virtually eliminated access to the procedure in Texas. Many clinics have stopped providing abortions altogether. Those who can afford the journey and are past six weeks of pregnancy are seeking abortions in surrounding states, including Oklahoma, New Mexico, Arkansas and Kansas. But many others — particularly those without the time off, financial resources or child care to travel out of state — may end up carrying unwanted pregnancies to term.

Abortions are now virtually unavailable for minors in Texas, who are required to either get parental consent or go through a special judicial approval process that makes it very difficult to meet the six-week deadline. Undocumented teens who are seeking abortions have been sent to immigration facilities in other states, because most of them already past six weeks when they discover they are pregnant.

And Slate tries to read some tea leaves.

The plaintiffs got half a loaf on Friday, or maybe less. SCOTUS will hear both cases, holding oral arguments in just 10 days. (With these orders, the court acted at breakneck speed, which is nearly unprecedented in modern times; the closest analogue is Bush v. Gore.) But SCOTUS restricted the scope of its review in a curious and confusing way. The court will not consider the Justice Department’s request to rule on the merits of S.B. 8. Instead, it will ask only whether the United States may sue the state of Texas, as well as all “state officials” and “private parties,” to “prohibit S.B. 8 from being enforced.” The abortion providers’ application likewise focuses on procedural issues, asking the court to decide “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to the public.

Neither of these questions squarely presents the constitutionality of a six-week abortion ban to the Supreme Court. The justices could interpret the abortion providers’ request as an invitation to consider the merits by declaring that the court must decide whether abortion is “a constitutional right” before determining “whether a state can insulate” S.B. 8 from review. (If there’s no right to abortion, there’s no clear constitutional flaw in S.B. 8.) But that seems unlikely; after all, the justices took pains to avoid confronting this question in the Justice Department’s case, where it is directly presented. They also ignored Texas’ request to recast these cases as a direct challenge to Roe. It appears, rather, that the court is committed to deciding only whether private plaintiffs or the federal government can sue a state when it makes an end run around the Constitution, as Texas did with S.B. 8.

Several aspects of the court’s orders suggest that at least one justice has not made up their mind about this question. If a majority believed Texas’ scheme is permissible and federal courts cannot stop it, why would it rush to hear these cases? It could have let them languish on the shadow docket, or decline to intervene at this early stage, just as it did last time around. Conversely, if a majority believed Texas’ scheme is impermissible and federal courts can stop it, why would it let S.B. 8 remain in effect? Why not halt the law while the court prepares a formal ruling?

Friday’s orders thus read like a compromise. But for whom? Chief Justice John Roberts and the three liberals have already said they want to pause the law. No one seriously argues that the overtly anti-Roe justices—Clarence Thomas, Sam Alito, or Neil Gorsuch—would lift a finger to stop S.B. 8. That leaves Justices Brett Kavanaugh and Amy Coney Barrett, who probably want to overturn Roe but may want to move slower than their hard-right colleagues. It appears either Kavanaugh, Barrett, or both aren’t yet sure which way they’ll vote in the Texas litigation. Now they’ve preserved every option.

I don’t have anything to add to that. Hold your breath and hope for the best.

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6 Responses to SCOTUS will hear SB8 appeals

  1. To protect our civil rights, the U.S. Supreme Court must strike down the new Texas abortion law – and the sooner, the better. For anyone interested, please read my post on – see link below. Thanks.

  2. Política comparada says:


    Re: “SCOTUS restricted the scope of its review in a curious and confusing way. The court will not consider the Justice Department’s request to rule on the merits of S.B. 8.”


    There is nothing curious about first determining whether jurisdiction exists. That is, after all, the threshold issue. Without jurisdiction, the merits cannot be reached. Any opinion would be advisory only and the legal system in the U.S.A. does not allow for such legal rulings detached from a concrete case in which the controlling legal question is genuinely contested by adverse parties with standing.

    The appeal in WWH v. Jackson is actually an appeal from the denial of lack-of-jurisdictional arguments made by the defendants (rather than an injunction appeal), and in the appeal of the Pitman injunction against the State of Texas, the Texas Solicitor General raised the jurisdictional arguments defensively prior to and at the preliminary injunction hearing. The same principle applies in United States v. Texas as in WWH v. Jackson. In the absence of jurisdiction (governed in federal courts by Article III), the district court cannot validly grant affirmative relief no matter how strong the theoretical merits of the legal arguments might be.

    And if the United States has no equitable cause of action in the absence of a statutory one authorized by Congress (analogous to Section 1983 for individuals), there is no case or controversy for the federal court to adjudicate even if the U.S. can make a plausible argument — to meet rudimentary standing requirements — that federal operations are somehow adversely affected by SB8. But even the latter claim is tenuous in light of the scant evidence presented about the federal government’s role in facilitating abortions for persons in federal custody or programs situated in Texas.

    This is not to say that abstract judicial review is a bad idea.

    Indeed, many countries have a special constitutional court or constitutional council that exercises abstract judicial review (without a concrete case in which the issue is litigated) according to the Kelsen model or some variant thereof. But the U.S.A. is not one of them. It would presumably require a constitutional amendment to change that, or a substantial transformation of the institutional role of the SCOTUS either by Congress or through a declamatory self-assertion of judicial power harking back to Marbury v. Madison.

  3. Jason Hochman says:

    Hi Greg, I stand with the president and Operation Screw Your Freedom. Civil rights and freedom are gauche relics of the Founding Fathers.

  4. Ross says:

    Jason, no one is getting screwed out of freedom. If I had my way, anyone refusing a vaccine would not be allowed in public, because there is right to harm other people by breathing you Covid laden breath all over the place. I am going to assume that you think Typhoid Mary should have been allowed to continue infecting people, just to preserve her freedom.

  5. Jason Hochman says:

    Yeah, Ross, I think that the Science says that those who get a Covid vaccination can still get infected and spread the disease. In fact, they are more likely to do so, since the vaccine is just a symptom mitigation strategy, those who are vaccinated might not recognize the signs and symptoms of the deadliest virus with a 99.7% survival rate, and thus, go out and about and spread it.

    We have been out breathing our vocid laden breath before vaccines were invented. We just wore masks. After playing sick for over a year, my brain is jacked up and I think that I am still sick, thus, I have been in therapy and such, to come to grips with the fact that the Big Lie was used to terrorize us.

    We have seen that humans are shit at accepting their mortality, and have such hubris to think that they will attain immortality. But I doubt that’s gonna happen.

  6. Pingback: The SCOTUS hearing on SB8 is today – Off the Kuff

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