What the SB8 Ruling Didn't Resolve

 by Michael C. Dorf

Today SCOTUS decided the Texas SB8 case, rendering what looks superficially like a split decision. Justice Gorsuch, writing for a majority on this point, said that the abortion providers' lawsuit is "permissible against some of the named defendants but not others." Yet, as I'll explain very briefly here, that's highly misleading for two reasons.

First, the defendants against whom the majority allows the case to proceed are licensing officials who, eight Justices concluded, have some enforcement authority with respect to SB 8. Whether that is a correct reading of SB 8 is unclear. Justice Thomas, in dissent on this point, says that SB 8 could be read as disclaiming any such authority. But even accepting the majority's reading of SB 8 as correct, Justice Sotomayor is surely also correct that in future legislation in Texas and other states, lawmakers who want to ensure that they close the door to anticipatory relief in federal court will now know to disclaim any executive enforcement authority even more clearly.

Second, and more directly relevant to the ongoing SB 8 litigation, even if the district court accepts the invitation of Chief Justice Roberts, writing for himself and the three Democratic appointees, to "resolve this litigation and enter appropriate relief without delay," it is not clear that the district court can in fact order the kind of broad relief that would be necessary to reassure the providers that they can perform constitutionally protected abortions without risking being overruled by the Fifth Circuit and/or the five most conservative SCOTUS justices. Suppose the district court enjoins the licensing officials from taking whatever steps they have in their power to enforce SB 8. That injunction would likely not run against individual plaintiffs who might sue abortion providers and abortion abettors, and if the injunction did purport to run so broadly, one could well imagine the Fifth Circuit quickly narrowing it, with its narrowing decision remaining undisturbed because five justices would agree that an injunction can't run beyond the parties to the case.

Is all of the foregoing a roadmap to further defiance of the Supreme Court, as the Chief and the Democratic appointees warn? Perhaps so, but I suspect that such defiance will be ineffective in other settings. As I noted in early September, SB8 is effective at chilling the exercise of abortion rights because the Supreme Court itself--and in particular the five Justices who voted today to deny a right to seek relief against state court clerks and the attorney general--have destabilized the abortion right. Last week's oral argument in Dobbs did nothing to remove that cloud, if anything only darkening the skies.

Thus, state efforts to mimic SB 8 with respect to Second Amendment rights and religious rights (as discussed by Justice Sotomayor) would not have nearly the same impact as SB 8, because the holders of those rights would be secure in the knowledge that they could assert their federal rights as a defense in any action in state court. In the unlikely event that a state court defied SCOTUS precedent, the Supreme Court itself would provide relief. By contrast, litigation in state court--or, for that matter, even federal court--cannot similarly protect abortion providers so long as they have good reason to fear that the Supreme Court stands ready to abandon its abortion precedents.

The problem with SB 8 is not so much that it defies the Supreme Court. The problem is that it takes its cue from what increasingly looks like a majority of the Supreme Court.