The litigation surrounding S.B. 8, the Texas law that bans abortion after about six weeks of pregnancy, has been many things, but never ordinary.
The law itself, which outsources enforcement to literally any private citizen, is unique. Many states have criminalized abortion after a doctor could detect fetal cardiac activity, but Texas authorized lawsuits against abortion doctors and anyone else who “aids or abets” them. This strategy was designed to frustrate pre-enforcement challenges and put abortion providers out of business. In the past, when Texas required clinics to comply with the rules governing ambulatory surgical centers and mandated that doctors have admitting privileges at a nearby hospital, many clinics closed, never to reopen, even after the Supreme Court ultimately held those laws to be unconstitutional. Allowing S.B. 8 to go into effect, its supporters hoped, would have the same effect.
Texas invoked sovereign immunity to shield itself from suit. Under Ex parte Young, plaintiffs can seek injunctions against government officials charged with enforcing potentially unconstitutional laws. Abortion providers sued a range of lawmakers, judges, and Mark Lee Dickson, an anti-abortion activist. But Dickson disclaimed any intent to bring a lawsuit under S.B. 8, and Texas claimed that none of the state officials were proper defendants because the law gives them no role in directly enforcing the ban.
Shortly before Sept. 1, when S.B. 8 was scheduled to take effect, the providers came to the Supreme Court with an emergency application seeking to block the law. The court remained silent for more than 24 hours, thereby letting the law go into effect. Then, late at night on Sept. 1, the court issued a cryptic order denying the providers’ request for an injunction. The vote was 5-4. In dissent, Chief Justice John Roberts described S.B. 8 as “unprecedented.”
The same, of course, was true of the Supreme Court’s response. The court signed off on a law that its framers described as an attempt to circumvent rights recognized by the federal judiciary. More remarkably still, the court treated S.B. 8 as a matter of no great urgency.
As I wrote at the time, delay and indifference defined the court’s initial response to S.B. 8. Not so anymore.
Last week, the court took up two challenges to S.B. 8. One, brought by abortion providers, asked the justices to weigh in on “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 court also granted a separate petition from the Justice Department. The United States, which until now had never brought a challenge to a state abortion restriction, argued that S.B. 8 interferes with its sovereign interest in ensuring that states recognize federal constitutional rights. DOJ also argued that the law raises preemption concerns by threatening the work of federal agencies, employees, and contractors who might offer abortion services.
In addition to granting the providers’ petition, the court will address whether the United States may sue the state of Texas, “state officials,” and “private parties” to “prohibit S.B. 8 from being enforced.” And rather than sitting on its hands, the court set a breakneck pace. It ordered an accelerated briefing schedule and set a date for oral arguments in both cases just 10 days from when the court agreed to hear them — a near record reminiscent only of the court’s speed in resolving the 2000 presidential election in Bush v. Gore.
Tea-leaf readers will find the court’s actions difficult to parse. The court again let S.B. 8 remain in effect. If the justices believe this law is unconstitutional, letting it linger seems strange. For many, the effects of S.B. 8 will be irreversible — for pregnant women seeking abortions and for clinics that will struggle to reopen. But the court is clearly in a hurry, which seems strange if the justices see nothing concerning about S.B. 8’s scheme. And in contrast to the previous 5-4 split, this time only Justice Sonia Sotomayor dissented from the court’s willingness to let the law remain in force. It seems unlikely that Roberts, Justice Stephen Breyer, and Justice Elena Kagan are any more at peace with the S.B. 8 scheme now than they were in early September. Perhaps they remained silent because they are confident that the law will not be in effect much longer.
It is not even clear whether the court will address the core substantive question: whether this court believes a six-week abortion ban is unconstitutional — and, by implication, whether Roe v. Wade and Planned Parenthood v. Casey are still good law. The grant in the Justice Department case is vague enough that it would allow consideration of the merits. The providers’ petition — which asks whether a state “can insulate from federal court review a law that prohibits exercise of a constitutional right” — builds in the question of whether S.B. 8 violates a constitutional right. On the other hand, the court did not take up Texas’ suggestion in the Justice Department’s case to explicitly reconsider Roe and Casey. Most likely then, the court will resolve only procedural questions about S.B. 8 and will do so quickly — perhaps before the court even hears oral argument on the constitutionality of Mississippi’s 15-week abortion ban in early December.
What seems clear is that the justices are taking S.B. 8 seriously now. Respect for the gravity of the issue had long been the hallmark of the court’s abortion jurisprudence, which recognized the dignity of life in the womb and the importance of pregnant women’s interests in equality and autonomy. In the court’s response to S.B. 8, that respect was nowhere to be found. The court’s indifference was even more breathtaking because of what S.B. 8 represents — other states could easily use a similar scheme to frustrate the exercise of everything from the right to bear arms to religious liberty.
The S.B. 8 litigation has damaged the court. Aside from polls showing the court’s reputation in freefall, the justices themselves have seemed unusually defensive. In the past month and a half, several have taken to the microphone to insist that they are not, in the words of Justice Amy Coney Barrett, “partisan hacks.”
Many dismissed the justices’ promises to be above politics, and with reason. In its first iteration at the high court, the S.B. 8 litigation suggested not only that politics influenced the outcome but that the justices treated abortion, an issue of great concern to many Americans, with a mixture of contempt and nonchalance. The court’s rocket-docket response to last week’s developments might change the narrative. It was clear for decades that Americans on either side of the abortion issue treated the fate of Roe as a matter of grave concern. Now, it seems, the Supreme Court may once again agree.
The Supreme Court on Thursday night declined to postpone the execution of Willie Smith III, who argued that Alabama prison officials deprived him of a meaningful ability to select his method of execution under state law.
Shortly after the court turned down his final appeal, Smith, 52, was put to death by lethal injection at a prison in southwest Alabama. He was convicted of the 1991 kidnapping and murder of 22-year-old Sharma Ruth Johnson.
Willie Smith III.
Smith had asked to be executed by nitrogen gas in lieu of lethal injection, but he did not make that request on the proper form within a mandatory 30-day window. His lawyers argued that he could not understand the form due to his cognitive deficiencies, including a very low IQ score. They said Alabama violated the Americans with Disabilities Act by failing to accommodate his intellectual disability.
Two lower courts declined this week to halt Smith’s lethal injection, and the Supreme Court, in a brief order, also declined to intervene. No justices publicly dissented, but Justice Sonia Sotomayor wrote a short statement to express concerns about how Alabama prison officials implemented a 2018 state law that gave people on death row the right to choose nitrogen hypoxia instead of lethal injection. Sotomayor criticized the state’s “compressed timeline for notifying eligible inmates and haphazard approach to doing so.”
Smith’s appeal was the second time this year that he sought emergency relief at the high court this year. His execution previously had been set for Feb. 11, but the court ruled that night that Alabama could not prevent him from having his pastor with him in the execution chamber. That ruling forced the state to reschedule the execution.
This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether officers who observe a driver using a cellphone have reasonable suspicion to pull the driver over for texting, whether agents’ around-the-clock video surveillance of a home for 18 months is a “search,” and whether a plaintiff may sue a police officer for questioning without giving Miranda warnings.
Iowa and other states prohibit texting while driving but allow cellphone usage for other purposes, such as navigation. In Steven Struve’s case, Struve v. Iowa, police officers pulled Struve over after observing Struve using a cellphone – for an unidentifiable reason – for 10 seconds while driving. The traffic stop led to Struve’s arrest for having methamphetamine in the backseat. Struve, who was never charged with violating Iowa’s texting-while-driving law, was convicted for possessing a controlled substance. Before trial, the district court rejected Struve’s argument that the officers had violated the Fourth Amendment in pulling him over without reasonable suspicion because they could not tell whether he was texting or using his cellphone legally. The Iowa Supreme Court ruled that the officers’ “common sense” inference that Struve was texting provided reasonable suspicion for the traffic stop. In his petition, Struve argues that the Iowa Supreme Court adopted a minority, and incorrect, position among states with similar laws.
In another Fourth Amendment case, Tuggle v. United States, Travis Tuggle claims that federal agents – without a warrant – maintained around-the-clock video surveillance of his home for 18 months. Tuggle asks the justices to rule that this conduct constituted a “search” under the Fourth Amendment and that the Constitution required the agents to get a warrant. In the decision below, the U.S. Court of Appeals for the 7th Circuit ruled that the surveillance was not a search because Tuggle lacked a reasonable expectation of privacy in his movements that were observable to any ordinary passerby. In his petition, Tuggle argues that the U.S. Court of Appeals for the 5th Circuit and the Colorado and South Dakota Supreme Courts have considered such long-term surveillance a “search” because it infringes expectation of privacy that society is prepared to recognize as reasonable.
Vega v. Tekoh concerns a plaintiff’s ability to bring a lawsuit for a constitutional violation under 42 U.S.C. § 1983 after a plaintiff is questioned without having been advised of constitutional rights under Miranda v. Arizona. Carlos Vega, a sheriff’s deputy in Los Angeles County, questioned Terence Tekoh, a suspect in an investigation into sexual assault, without giving Tekoh his Miranda warnings. Tekoh confessed. At trial, the court allowed the prosecution to introduce Tekoh’s confession on the ground that the questioning did not violate Miranda because Tekoh was not in custody at the time. The jury, however, found Tekoh not guilty. Tekoh then sued Vega under Section 1983 for failing to give him the Miranda warnings. In his petition, Vega argues that the U.S. Court of Appeals for the 9th Circuit’s decision to let Tekoh’s claim proceed was incorrect and in conflict with other circuits. Vega maintains that Miranda governs when statements are admissible as evidence at trial, and that not receiving the warnings is not itself a constitutional violation. Vega also argues that he was not the proximate cause of the confession’s introduction at trial because the prosecutor and the trial judge played intervening and superseding roles.
Struve v. Iowa
21-374 Issue: Whether police officers in the more than 20 states that have laws that prohibit sending text messages on a cellphone while driving, but that allow drivers to use their cellphones for other purposes, such as navigation or playing music, have reasonable suspicion under the Fourth Amendment to initiate an investigatory traffic stop, when they observe a driver briefly holding and manipulating a cellphone, in a manner that does not indicate whether the cellphone is being used for a lawful or prohibited purpose.
Lamoureux v. Montana
21-427 Issue: Whether a statute that criminalizes speech intended to annoy or offend is unconstitutionally overbroad under the First Amendment.
National Pork Producers Council v. Ross
21-468 Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Court’s decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v. Bruce Church, Inc.
Black v. Pension Benefit Guaranty Corporation
21-495 Issues: (1) Whether the Employee Retirement Income Security Act permits the termination of a distressed pension plan through an agreement between Pension Benefit Guaranty Corporation and the plan administrator; (2) whether termination through such an agreement, which avoids a hearing, violates the participants’ constitutional rights to due process; and (3) whether, if ERISA and due process allow for termination by agreement, the termination’s substantive legality is to be judged under the standards in 29 U.S.C. § 1342(c), or whether it is enough that the conditions in Section 1342(a) to “institute” proceedings may exist.
The Supreme Court will hear oral argument on Nov. 1 in a pair of cases challenging the Texas law that bans nearly all abortions after the sixth week of pregnancy. In twoorders issued on Friday afternoon, the court granted requests by the Biden administration and a group of Texas abortion providers to leap-frog proceedings in the court of appeals, but it allowed the law to remain in effect for now — a decision that drew a stinging dissent from Justice Sonia Sotomayor.
The two orders suggest that the court will not directly weigh in on whether the Texas law, known as S.B. 8, violates the constitutional right to obtain an abortion. Instead, in the case brought by the Biden administration, the court will consider whether the federal government has the right to sue in federal court to block the law’s enforcement. And in the case brought by the abortion providers, the court will assess the law’s unusual private-enforcement structure, which deputizes private individuals to bring lawsuits against doctors, clinics, or anyone else who “aids or abets” an abortion.
The Biden administration had asked the court to block enforcement of S.B. 8 while the litigation proceeds, but the justices “deferred” that request “pending oral argument,” meaning the law will remain in place until at least Nov. 1. It was the second time since S.B. 8 took effect on Sept. 1 that the court declined to block the law on an emergency basis.
The court’s Friday orders came in two different cases that came to the court at different times and in different procedural postures, but which have now converged. The Biden administration came to the Supreme Court in United States v. Texas, its challenge to the S.B. 8’s constitutionality, on Monday. The Department of Justice asked the court to reinstate a decision by a federal district judge who declared the law unconstitutional and temporarily blocked it. The district judge’s decision is no longer in effect because the U.S. Court of Appeals for the 5th Circuit issued a stay.
In Whole Woman’s Health v. Jackson, the abortion providers asked the justices in late September to weigh in on S.B. 8’s private-enforcement mechanism. They urged the court to act without waiting for a final ruling from the 5th Circuit on the substance of the law. The court did not act on the providers’ request to fast-track consideration of their appeal for nearly a month, but after the Biden administration came to the Supreme Court on Monday, the justices ordered Texas to file its responses in both cases by noon on Thursday.
In its filings on Thursday, Texas urged the court not to intervene. It told the justices that “[n]either the federal government nor abortion providers are entitled to demand Texas write its laws to permit them to be challenged” in federal court before they are enforced. But if the court did decide to review the merits of S.B. 8 on an expedited basis, Texas added, it should use the case as an opportunity to overrule the court’s landmark rulings in Roe v. Wade and Planned Parenthood v. Casey, establishing the constitutional right to an abortion.
In its two brief orders on Friday, the court granted “certiorari before judgment” – that is, review before the court of appeals issues a final ruling — in both cases, and it set a highly expedited briefing schedule, culminating in oral arguments in just 10 days.
The court gave no indication that it will take up Texas’ suggestion to use the Texas litigation to consider whether Roe and Casey should remain on the books. But on Dec. 1, the court is scheduled to hear a Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, that directly challenges Roe and Casey. Under those precedents, states cannot ban abortion prior to the point of viability, or around 24 weeks of pregnancy. Texas’ law bans nearly all abortions after about six weeks, and Mississippi’s law (which was blocked by lower courts before it took effect) would ban nearly all abortions after 15 weeks.
Sotomayor wrote a partial dissent from the court’s Friday order in United States v. Texas. In a six-page opinion, she argued that the court should have put S.B. 8 on hold now, and she stressed that the court’s failure to do so “will have profound and immediate consequences” for Texans in need of an abortion. “There is no dispute that under this Court’s precedents,” she noted, “women have a constitutional right to seek abortion care prior to viability.” But “S.B. 8 was created to frustrate that right by raising seemingly novel procedural issues,” she argued, and “it has had precisely the intended effect.”
Therefore, Sotomayor posited, the court should have blocked enforcement of the law while the challenges were being litigated. “Every day that S.B. 8 remains in effect is a day in which such tactics are rewarded,” she concluded. “And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights.”
Lawyers for the state of Texas urged the Supreme Court on Thursday to leave a Texas law that imposes a near-total ban on abortions in place. “Neither the federal government nor abortion providers are entitled to demand Texas write its laws to permit them to be challenged” in federal court before they are enforced, the state told the justices. But if the court opts to review the merits of the law on an expedited basis, Texas continued, it should use the case as an opportunity to overrule the court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey, establishing the constitutional right to an abortion.
The filings came in two separate cases arising from the Texas law, known as S.B. 8. In United States v. Texas, the Department of Justice wants the Supreme Court to reinstate a decision of a federal district judge who declared the law unconstitutional and temporarily blocked it earlier this month. A federal appeals court put the district judge’s ruling on hold, prompting the DOJ to seek emergency relief at the Supreme Court on Monday.
Although the providers came to the Supreme Court in late September, the justices did not act on their request to fast-track consideration of their appeal for nearly a month. But shortly after the Biden administration filed its application on Monday to block enforcement of S.B. 8, the court ordered Texas officials to respond in both S.B. 8 cases by noon on Thursday – suggesting that the justices may act on both at the same time.
The court is also poised to hear argument in a separate high-profile abortion case on Dec. 1. That case, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law that bans most abortions after 15 weeks. Mississippi and its supporters have asked the court to overturn Roe and Casey.
In its filing on Thursday in the DOJ’s lawsuit, Texas argued that the federal government lacks a legal right to sue, known as standing. It isn’t enough, Texas contended, for the government to argue that S.B. 8 interferes with the government’s obligation to provide access to abortions in some situations, such as federal inmates. Such a scenario is “entirely hypothetical,” Texas suggested, particularly when Texas courts operate under the assumption that state laws do not apply to the federal government. And the broader interest in protecting the right to an abortion would not give the United States the right to sue, Texas added, because the federal government does not have a “duty” to protect that right.
Even if the federal government did have the right to bring the lawsuit, Texas continued, that lawsuit would still fail on the merits. Contrary to the government’s argument that S.B. 8 is trumped by federal law, Texas stressed, “there is no federal statute or regulation requiring Texas to permit abortions after a heartbeat is detected.” Indeed, Texas noted, some federal laws bar public funding for elective abortions. More broadly, Texas argued, S.B. 8 does not violate the Constitution. Therefore, Texas posited, if the justices opt to take up the merits of the federal government’s case, the court “should overrule Roe and Casey and hold that SB8 does not violate the Fourteenth Amendment.”
In its filing in the providers’ lawsuit, Texas urged the justices to allow the case to play out first in the 5th Circuit, which is scheduled to hear the case the week of Dec. 6. But even if the justices were to reach the merits of the providers’ claims, Texas continued, the very premise of the providers’ argument for the justices’ immediate intervention is flawed: Although the providers contend that S.B. 8’s enforcement scheme deprives the Supreme Court of its “authority to say what the law is,” the providers can challenge the law through the state courts, and then appeal to the Supreme Court from the Texas Supreme Court. And in any event, Texas concluded, there is another remedy available to the providers beyond Supreme Court review of that state-court ruling: Congress can use its enforcement power to pass laws that will supersede state laws that it believes violate citizens’ constitutional rights.