On Monday 1 November 2021 the US Supreme Court heard two cases about Texas Senate Bill 8, a law that banned most abortions once cardiac activity could be detected, at around six weeks of pregnancy. The arguments were unusual because the real dispute was less about abortion itself than about how the law was designed.
The design of SB 8
Most laws are enforced by state officials, who can be sued in federal court to stop enforcement if a law is unconstitutional. SB 8 was written differently. It barred state officials from enforcing it and instead allowed private individuals to sue anyone who performed or "aided or abetted" a prohibited abortion, with awards of at least $10,000. That design made it hard for clinics to find a defendant to sue in advance.
The two cases
- Whole Woman's Health v. Jackson was brought by abortion providers. Marc Hearron of the Center for Reproductive Rights argued for the providers; Judd Stone, Texas's Solicitor General, argued for the state.
- United States v. Texas was brought by the federal government, argued by the US Solicitor General, Elizabeth Prelogar.
Over about three hours, several justices, including some conservatives, questioned whether a state could insulate a law from federal court review this way, and what that would mean for other constitutional rights.
The decision
On 10 December 2021 the Court ruled in Whole Woman's Health v. Jackson that the providers could proceed against certain state licensing officials, but not against state court judges, clerks or the Attorney General. In practice the law stayed in force. The federal government's case was dismissed as improvidently granted.
What came next
On 24 June 2022, in Dobbs v. Jackson Women's Health Organization, the Court overruled Roe v. Wade and Planned Parenthood v. Casey, returning abortion regulation to the states. Texas's separate near-total ban then took effect. SB 8's private-enforcement model has since been copied or proposed in other states and on other subjects, which is why lawyers across the political spectrum still study the November 2021 arguments.