WASHINGTON – The Supreme Court today issued rulings in Whole Woman’s Health v. Jackson and United States v. Texas—challenges to SB 8, the Texas law banning abortion after 6 weeks of pregnancy. The Court allowed the challenge in Whole Woman’s Health to continue, in limited part, while permitting SB 8 to remain in effect. The Court dismissed the writ of certiorari as improvidently granted in U.S. v. Texas, the case brought by the U.S. Department of Justice.

Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

Let’s be clear: while today’s ruling contained one small step forward, allowing a portion of the SB 8 challenge to proceed, it contained many more ominous steps backward. The Court breaks faith with the Constitution by allowing a state to deny people their rights protected by the Constitution, rights that the Court has a duty to uphold. And hidden under the veneer of the Court allowing, in some limited respect, the challenge to SB 8 by Whole Woman’s Health to continue, the Court has effectively given a green light to state efforts to limit fundamental constitutional rights. Abortion rights are being denied in Texas, still, and only four Justices were willing to say today that SB 8 is unconstitutional.

It should not pass notice that the claims the Court permits to go forward in Whole Woman’s Health are close to meaningless in practical terms. Permitting the district court to enjoin licensing officials, but not the court clerks or the Texas Attorney General, from acting to enforce SB 8 practically gives up the game. Though an injunction against these officials alone might be ordered by the district court in coming days or weeks, SB 8 would remain largely intact and in force.

That’s bad enough, but the damage runs deeper. Five conservative justices today ignored one of the Court’s earliest observations that “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” That is precisely what Texas has done with SB 8, and the Court essentially gave this law—this “mockery”—its stamp of approval. As Chief Justice Roberts noted, it is “the role of the Supreme Court in our constitutional system that is at stake.”

In fact, as Justice Sotomayor powerfully explained, today’s ruling ratifies a claim that “echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed.” In practical effect, today’s ruling allows a state to make an end-run around the Constitution by delegating enforcement to private parties.

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Resources:

CAC case page in Whole Woman’s Health v. Jackson: https://www.theusconstitution.org/litigation/whole-womans-health-v-jackson/ 

CAC case page in United States v. Texas: https://www.theusconstitution.org/litigation/united-states-v-texas-sb8-litigation/ 

“If Supreme Court Rules Neither Abortion Providers nor DOJ Can Challenge S.B. 8, No Right Is Safe.,” CAC Blog, Miriam Becker-Cohen, October 29, 2021: https://www.theusconstitution.org/blog/if-supreme-court-rules-neither-abortion-providers-nor-doj-can-challenge-s-b-8-no-right-is-safe/ 

“No, Really, Roe Is Supported by the Text and History of the Constitution,” David Gans, The Atlantic, November 1, 2021: https://www.theatlantic.com/ideas/archive/2021/11/roe-was-originalist-reading-constitution/620600/ 

CAC #PurpleChairChat, “Abortion Rights: What’s at Stake?” (online conversation between CAC President Elizabeth Wydra and Sister Song Executive Director Monica Simpson), October 28, 2021: https://www.theusconstitution.org/blog/abortion-rights-whats-at-stake/ 

“The Mississippi Abortion Case Threatens the Right to Use Birth Control, Marry, and Even Make Choices About Sex,” David Gans, Slate, October 12, 2021: https://slate.com/news-and-politics/2021/10/mississippi-abortion-birth-control-lgbtq-scotus.html 

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Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

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