Six weeks after giving abortion clinics a narrow chance to try to block the nation’s strictest abortion ban, the Supreme Court on Thursday refused to stand behind that ruling. Leaving undisturbed a lower court’s contrary decision, the Court’s majority did so in a somewhat embarrassing way: without a word of explanation.
The new order, backed by a 6-to-3 vote, denied a formal request by the clinics for the Justices to re-take control of a case that has been unfolding in three levels of federal courts since mid-July. At issue is the constitutionality of a new Texas law that bans nearly all abortions after six weeks of pregnancy – far earlier than the Court has ever allowed a ban.
The six-Justice majority issued a one-sentence order, with no written opinion. The three dissenters spoke through two separate opinions (each signed by all three), accusing the lower court of defiance.
As a result of Thursday’s order, a federal appeals court’s split decision last Monday will send the clinics’ case to the Texas’s state Supreme Court, where it very likely will come to an end without a decision on the constitutionality of the abortion ban (known as “SB 8”). The state’s highest court is strongly conservative, and it is widely expected to find that the clinics have no one to sue over the ban’s validity.
Thus, there are further developments to come, but the Justices’ refusal to get further involved at this point already suggests these implications:
** It showed, once again, that the current majority on the Supreme Court is not troubled about leaving in operation a law that directly contradicts the Court’s 1973 decision in Roe v. Wade, establishing a woman’s constitutional right to end her pregnancy. Roe v. Wade bars a state ban on abortion at any point earlier than about 24 weeks of pregnancy. Texas’s six-week ban went into effect, with the Court’s temporary permission, almost five months ago.
** It was another strong hint that the Roe v. Wade precedent itself may no longer have majority support on the current Court, and thus might be overruled when the Court later this year rules on a separate case, from Mississippi, in which Roe’s future is directly at stake. The Court held a hearing on that case on December 1 but has not yet ruled.
** It illustrated how a lower court, seemingly inclined to delay a constitutional reckoning for an anti-abortion law, can give its own interpretation of a Supreme Court ruling that actually changes the meaning of what the Justices had done. Indeed, the lower court turned a single dissenting Justice’s vote in the Court’s ruling into part of the controlling result. That reasoning led the three Justices who dissented on Thursday to write that the lower court had acted to “clearly defy” what the Court had done, or had “ignored our judgment.”
** It very likely will mean that, if the SB 8 can is ever going to be subjected to a final constitutional challenge, it could only be in a separate case that the Biden Administration is currently pursuing in the lower federal courts. That lawsuit would not be blocked if the Texas Supreme Court scuttles the clinics’ case, because the Administration is suing the state itself on the theory that it is responsible for SB 8. State governments are not immune to federal government lawsuits claiming a violation of federal law or of the Constitution.
It may take some months for the Administration case to go through the lower courts and return to the Supreme Court. In the meantime, it’s possible that SB 8 would not be disturbed in the meantime. In practical terms, that law has meant the end of almost all opportunities to get an abortion anywhere in Texas, requiring women to travel to neighboring states to have the procedure.
If the state court does shut down the clinics’ case, on the premise that no state official has authority to enforce SB 8 and that it can be enforced only by private citizens (presumably, who are opposed to abortion rights), the result would be binding on the federal courts, since it would be an interpretation of the meaning of a state law.
Federal courts can strike down a state law if they find it violates the federal Constitution, but they cannot second-guess what state courts say such a law means. The Supreme Court made clear (in the 1938 decision in Erie Railroad v. Tompkins) that, in interpreting a state law’s scope, a federal court must take it as a state court had interpreted it.
On December 10, when the Court decided to allow the clinics’ constitutional case to go forward in lower courts, it said explicitly that eight of the nine Justices – all but Justice Clarence Thomas – had agreed to that. While the eight Justices spoke through two separate four-Justice opinions, there was no doubt then that the case would go on.
Four officials in charge of medical licensing, those eight Justices wrote, appeared to have the authority to take action against any abortion provider who violated the six-week ban. A peculiar feature of SB 8 is that, in order to head off a constitutional challenge to the law in federal court aimed at state officials, it authorized private citizens instead to enforce the law. Private citizens can sue and get an award of at least $10,000 if they win a claim that the law had been violated.
After the Justices’ ruling six weeks ago, the state asked the U.S. Court of Appeals for the Fifth Circuit (which includes Texas in its territory) to transfer the clinics’ case to the Texas Supreme Court for a definitive ruling on whether the licensing officials were subject to the clinics’ challenge.
The clinics tried to head that off, returning to the Supreme Court on January 3, asking the Court to order the Appeals Court to take no action other than letting that case resume before a federal trial judge in Austin (who earlier had blocked SB 8 temporarily). Although the clinics urged the Justices to act swiftly, it took no action on their plea (until Thursday). In fact, the Court did not even ask the other side to reply to these requests.
On Monday, however, the Appeals Court in a 2-to-1 decision declared that, since the eight Justices were split in their reasoning about who could be sued, there was no majority declaration on the point. So, it took one of the four-Justice opinions and its “uncertainty” and added to it the dissenting vote by Justice Thomas, then concluded that it should send the issue to the state court to resolve.
It wrote: “We, the inferior court, are bound by the governing plurality plus Justice Thomas, whose reasoning bespeaks at least uncertainty and the need to defer to state law.”
In something of a surprise, with no prior indication that it was preparing to do anything with the clinics’ new request, the Supreme Court took its first action on Thursday. Its order said, in full: “The petition for a writ of mandamus is denied.”
The votes of the Justices in the majority were not revealed, so one had to assume that six Justices had supported it. It would have taken at least four votes to consider the clinics’ plea, and at least five votes to grant it. Presumably, the order had the support of some or all of these members of the Court: Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Clarence Thomas.
The dissenters – Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor – all signed separating dissenting opinions written by Breyer and Sotomayor. They said they had thought that, after the Court’s ruling on December 10, the clinics’ case would have gone quickly back to the trial court in Austin for a new decision on SB 8. “Instead,” the Breyer opinion said, “the Court of Appeals ignored our judgment.”
The lengthier dissent by Sotomayor took the appeals court ruling apart, one point at a time, but was equally critical of the Supreme Court. The Court, she wrote, “countenances yet another violation of its own commands….The Court may look the other way, but I cannot.” She blamed the appeals court for a “failure to follow this Court’s clear dictates,” and of relying wrongly on the Thomas dissent on December 10. “This Court should not accept such an egregious distortion of its decision,” she concluded. “This case is a disaster for the rule of law.”
For the time being, then, the clinics’ case appears to be headed to the Texas Supreme Court, with its ultimate fate very much in doubt. It appears that the clinics have used all of the options they have to try to move the case to a decision on SB 8’s constitutionality.