By Justin Rockaway
image provided by Flickr under the Creative Commons License
The recent signing of TX SB8, or the “Texas Heartbeat Act”, has garnered national media attention after the split-decision denial of the Supreme Court to grant an injunction that would block the enforcement of the controversial abortion bill. In essence, the act grants private citizens the right to file civil lawsuits against those “aiding or abetting” in providing an abortion with detectable fetal heartbeats under most circumstances. It also seeks to award a minimum of $10,000 in statutory damages as well as covering legal and court fees for those filing suit. Many see this as a roundabout way of ensuring the state can deny its enforcement of the law, which is often cited as a violation of the precedents set in the landmark 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions, which protect the constitutional right to privacy regarding abortion and the “undue burden” test.
Shortly after bill’s passage, a class-action complaint was filed under the name “Whole Woman’s Health v. Jackson,” with Jackson and the several other defendants being members of Texas district courts and official boards of health. The complaint made its way to the Supreme Court, where a 5-4 majority of justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett decided against the plaintiffs, allowing the law to go into effect. This was not a surprising decision, as the current composition of the Court includes 6 justices who were nominated by Republican presidents, with the traditionally liberal justices Breyer, Sotomayor, and Kagan being in the minority. The death of popular liberal justice Ruth Bader Ginsburg, who had spearheaded several landmark civil rights decisions in her nearly 30 years on the Court, opened the door for then-President Trump to establish a conservative “supermajority” of 6 justices, including the often swing-voting Chief Justice Roberts. This split now requires two traditionally conservative justices, rather than just Roberts, to switch their vote in order for the liberal bloc to gain majority.
While this majority has, understandably, raised concern among many pro-choice groups who fear the potential of a repeal of the 1973 Roe v. Wade decision, the Court itself made it clear that the refusal to stop the Texas judiciary from hearing these civil suits was not a matter of constitutionality or legality. Instead, it is a more complex matter of litigation and enforcement stemming from the wording of the Act itself, which ensures that the Texas government is in no way directly capable of enforcing it. Since there had been no civil suits filed in the name of SB8 as of the filing of the complaint, the district judge and the rest of the defendants could successfully deny themselves as “enforcers” of the law, the constitutionality of which was not legally determinable at that point. Chief Justice Roberts, in his opinion released on the Court’s decision, makes clear that the Court can enjoin (or prohibit from enforcing the Act) “individuals tasked with enforcing laws, not the laws themselves” (WWH v. Jackson, 2021). The Texas legislature drafted the law in such a way that there was no possibility of a preemptive injunction, and the Court would have to wait until an instance of its enforcement was available to be legally challenged. The only citizens who can file a civil suit under SB8 are “Any person, other than an officer or employee of a state or local government entity in this state” (Texas Heartbeat Act, 2021). While many defenders of Roe v. Wade would have preferred the definitive support of the Supreme Court against the new Texas legislation, Chief Justice Roberts’ opinion ensures that the decision is in no way speaking to the constitutionality of the law, or the Court’s support thereof.
The use of Texas’ private citizenry to enforce an otherwise highly controversial law is a relatively unprecedented occurrence and could be seen more in the future by state lawmaking bodies that wish to enact questionable laws free from judicial infringement. While the use of non-government enforcers is a short-term solution and in no way escapes the eventual question of constitutionality, it demonstrates the ability of smaller lawmaking bodies to (temporarily) circumvent federal supremacy. A Mississippi case originating from last year, Dobbs v. Jackson Women’s Health Organization, also includes the question of a state-level law that places restriction on abortion availability. The Mississippian “Gestational Age Act”, the law in question, was permanently prevented from enforcement by both district and appellate courts. This is a clearer matter of precedent, as the state government is directly responsible for enforcing the law and thus cannot protect itself from injunction or restraint at the federal level like the law in Texas.