On November 1st the U.S. Supreme Court will hear oral argument in two cases challenging Texas’s abortion law. S.B. 8, enacted earlier this year, prohibits abortions in Texas after approximately six weeks. It allows private citizens to sue a person who provides an abortion in violation of S.B. 8 or “aids or abets” such an abortion.
The question before the Court in United States v. Texas is whether the United States may sue Texas, Texas state judges, state clerks, other state officials, or private parties to prohibit S.B. 8 from being enforced. In Whole Woman’s Health v. Jackson the Court will decide “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to private citizens.
The Supreme Court allowed the law to remain in effect before it decides the case. The Court did not ask the parties to brief whether S.B. 8 is unconstitutional. Casey v. Planned Parenthood (1992) requires states to allow abortions before viability (about 24 weeks).
An abortion provider sued Texas judges and court clerks to prevent them from accepting lawsuits enforcing S.B. 8. When that lawsuit was initially unsuccessful in the Supreme Court the U.S. Department of Justice sued Texas.
On September 1, in Whole Woman’s Health v. Jackson, the Supreme Court denied an abortion provider’s request to prevent S.B. 8 from going into effect because of the law’s “novel” enforcement scheme. On remand, the Fifth Circuit also denied the abortion provider’s emergency motion for an injunction stating “claims against a state judge and court clerk are specious” because state sovereign immunity “explicitly excludes judges from the scope of relief it authorizes.”
In Whole Woman’s Health the Fifth Circuit didn’t definitively rule whether “federal courts are powerless to preemptively block enforcement of a privately enforced state-law prohibition.” But, according to the abortion providers, “the writing is on the wall.” The Court agreed to hear the abortion provider’s case regardless of a lack of a definitive Fifth Circuit ruling.
In United States v. Texas the United States claims that it may sue Texas over S.B. 8. According to the United States: “Sovereign immunity forced the private plaintiffs in Whole Woman’s Health to sue individual state officers, and this Court and the Fifth Circuit questioned whether those officers were proper defendants. This suit does not raise those questions because it was brought against the State of Texas itself, and the State has no immunity from suits by the United States.”
A federal district court agreed with the United States and issued a preliminary injunction in its favor, but Fifth Circuit prevented the district court ruling from going into effect. The Supreme Court will decide whether the United States may sue Texas before the Fifth Circuit has ruled definitely on this issue.